State Seal Calendar

Meeting Proceedings for January 28, 1998


          1                        STATE OF FLORIDA



                                  COMMISSION MEETING



              DATE:                   January 28, 1998
              TIME:                   Commenced at 9:00 a.m.
         11                           Concluded at 3:00 p.m.

         12   PLACE:                  The Senate Chamber
                                      The Capitol
         13                           Tallahassee, Florida

         14   REPORTED BY:            KRISTEN L. BENTLEY
                                      MONA L. WHIDDON
         15                           JULIE L. DOHERTY
                                      Court Reporters
         16                           Division of Administrative Hearings
                                      The DeSoto Building
         17                           1230 Apalachee Parkway
                                      Tallahassee, Florida









          1                           APPEARANCES


          3   CARLOS ALFONSO
              CLARENCE E. ANTHONY
          4   ANTONIO L. ARGIZ  (ABSENT)
              PAT BARTON
          6   ROBERT M. BROCHIN
          7   KEN CONNOR
              CHRIS CORR
              VALERIE EVANS  (EXCUSED UNTIL 9:45 a.m.)
              PAUL HAWKES  (ABSENT)
              DICK LANGLEY (ABSENT)
         13   JOHN F. LOWNDES
              STANLEY MARSHALL (EXCUSED UNTIL 1:15 p.m.)
         14   JACINTA MATHIS
              JON LESTER MILLS
         15   FRANK MORSANI
         16   CARLOS PLANAS  (EXCUSED)
              JUDITH BYRNE RILEY
              SENATOR JIM SCOTT
         18   H. T. SMITH
              CHRIS T. SULLIVAN  (ABSENT)
         19   ALAN C. SUNDBERG
         20   PAUL WEST  (ABSENT)
         21   STEPHEN NEAL ZACK  (EXCUSED UNTIL 1:15 p.m.)

         22   IRA H. LEESFIELD  (ABSENT)




          1                           PROCEEDINGS

          2             (Roll taken and recorded electronically.)

          3             SECRETARY BLANTON:  All commissioners indicate

          4        your presence.  All commissioners indicate your

          5        presence.  Quorum call.  Quorum call.

          6             (Quorum taken and recorded electronically.)

          7             SECRETARY BLANTON:  Quorum present, Mr. Chairman.

          8             CHAIRMAN DOUGLASS:  If everybody would take their

          9        seats and then promptly rise.  And if you would, rise

         10        for the morning prayer.  This morning we have Reverend

         11        Larry Killburn, who is the pastor of John Wesley

         12        United Methodist Church in Tallahassee.  Reverend

         13        Killburn, welcome.

         14             REVEREND:  May we pray.  Holy God, we thank you

         15        for waking us up this morning to another day of life.

         16        "This is indeed the day the Lord has made; we will

         17        rejoice and be glad in it."  Thank you Father, that we

         18        live in a country where freedom is embraced, and,

         19        Father, we pray for those who still live in places

         20        where oppression and fear prevail.  We pray this

         21        morning for all of those in authority over us:  for

         22        our President and Vice-President, for our other

         23        elected officials in Washington, D.C., Father, give

         24        them wisdom and patience to govern rightly.

         25             We also pray today for those in state government


          1        here in Florida -- our Governor and Cabinet, our state

          2        legislators and, especially for those represented here

          3        on the State Constitution Revision Commission.  Watch

          4        over their deliberations today, Father, guard them

          5        against a spirit of protectionism and partisanism.

          6        Allow their discussions to flow freely so that in the

          7        end your will may be done in regard to this most

          8        precious document, our state Constitution.

          9             And we'll be careful, Father, to give you the

         10        glory and honor, because, O God, you are so worthy and

         11        so deserving of our praise.  In your Heavenly Name, we

         12        pray.  Amen.

         13             CHAIRMAN DOUGLASS:  Thank you, Reverend.  This

         14        morning, please remain standing for the Pledge of

         15        Allegiance, which is led this morning by students from

         16        Deer Lake Middle School who will serve as our pages

         17        today.  As I call your name, would you come up and

         18        stand in front of the group, and they include Lindsey

         19        Hartsfield, Mollie Snyder, Lindsey Johnson, Catlin

         20        Curts, Holly Monroe, Branden Gokey, James Martinez,

         21        Christian Baker, Eric Nash and Bryce Young.  Their

         22        chaperones are Carla Cramer and Shane Seifert.  If you

         23        young people would now turn and face the flag and lead

         24        us in the Pledge of Allegiance.

         25             (Pledge of Allegiance.)


          1             CHAIRMAN DOUGLASS:  Well, I think we all agree

          2        that it's certainly a beautiful morning and the

          3        weather is great.  It kind of put a little

          4        invigoration in some of us older people, but one of

          5        the most invigorating days we had was pointed out to

          6        me was yesterday.

          7             I don't know whether you realized it, but we

          8        dealt with subjects that have torn the country up for

          9        a number of years and we did it with great class and

         10        with debate and with respect for each other's

         11        opinions, and I'm very proud to be a part of this

         12        group.  We dealt with all forms of the abortion issue,

         13        we dealt with income tax, and we dealt with

         14        affirmative action, and we dealt with all of those

         15        things that really have been critically disruptive

         16        throughout the country.  And if others were watching

         17        and could see how you handled it and how the debate

         18        was handled, I think they could take it as a great

         19        example of how to deal with these very difficult

         20        subjects.

         21             The one thing that I think that has occurred in

         22        this group that doesn't occur in many is that you have

         23        the right to state your position and state it on the

         24        record and state what you really think should be done

         25        in the Constitution on all issues, and you have done


          1        it in such a fine manner that you make, all of you,

          2        you make me proud to be Chairman of this group, but

          3        also I think those who appointed you would have to be

          4        well pleased.  The daily order of this morning -- do

          5        we have any other announcements that we need to make?

          6        Commissioner Scott.

          7             COMMISSIONER SCOTT:  Mr. Chairman, Commissioners,

          8        there are four proposals that I want to waive out of

          9        the Finance and Tax Committee.  We discussed it with

         10        the members last night, that we did not -- we have no

         11        recommendation on them simply because we didn't get to

         12        them.  We handled some of the more controversial

         13        issues, 121, 26, 99, and 41.

         14             Two of these are by Commissioner Langley, one by

         15        Commissioner Mathis, which should -- it relates to the

         16        leasehold, but she wanted to keep that separate from

         17        the committee substitute so that we may -- so, I would

         18        move at this time to withdraw those from the Committee

         19        on Finance and Tax.  And we have acted on everything

         20        else that was in there.  Okay, 121 by Commissioner

         21        Freiden, 26 and 99 by Langley, it relates to the water

         22        management department, and 41 by Mathis, without

         23        objection.

         24             CHAIRMAN DOUGLASS:  Commissioner Barkdull.

         25             COMMISSIONER BARKDULL:  I recommend to the


          1        Commission that we have included these four items on

          2        the calendar, they start on Page 4, and the bottom one

          3        on the right-hand column on Page 4 is the first one

          4        identified by Commissioner Scott and the top next

          5        three on Page 5, so they are in your packet and they

          6        are before us if we reach them today.

          7             CHAIRMAN DOUGLASS:  I don't see 41 on here.

          8        Commissioner Scott.

          9             COMMISSIONER SCOTT:  It shouldn't be, because it

         10        relates to the seaport part of this leasehold issue.

         11        And it was kept separate.  We made committee

         12        substitutes out of all of the rest of them.

         13             CHAIRMAN DOUGLASS:  Forty-one won't come up

         14        really until our next meeting is what you are saying,

         15        and then because it is germane to the other issues

         16        we'll be taking up.  Okay, so you move that we add to

         17        the calendar, 121, 26, 99 and 109?

         18             COMMISSIONER BARKDULL:  Correct.

         19             CHAIRMAN DOUGLASS:  All right.  They are added

         20        without objection.  Commissioner Connor.

         21             COMMISSIONER CONNOR:  Mr. Chairman, I request

         22        unanimous consent of the body to simply carry the

         23        motion for reconsideration by which 107 failed and

         24        forward it in a pending mode until the next session.

         25             CHAIRMAN DOUGLASS:  All right.  Before we do


          1        that, I think Commissioner Barkdull, Chairman of

          2        Rules, hasn't finished his announcements, but that's

          3        fine.

          4             COMMISSIONER CONNOR:  I am sorry.

          5             COMMISSIONER BARKDULL:  That's fine, I have no

          6        objection to that, because there are two commissioners

          7        that are interested and there's one that's sick.

          8             CHAIRMAN DOUGLASS:  So, it's been proposed by

          9        Commissioner Connor that we carry over the pending

         10        motion to reconsider on 107 which has been pending

         11        until our next meeting.  Commissioner Morsani, you

         12        rose.  Do you want to speak to that?

         13             COMMISSIONER MORSANI:  Yes.

         14             CHAIRMAN DOUGLASS:  Okay, go ahead.

         15             COMMISSIONER MORSANI:  Maybe this isn't the

         16        proper time.  Mr. Conner, with all due respect, I

         17        think we have debated some of these issues, we keep

         18        debating them.  I think we have got to draw a line in

         19        the sand at some point.  I think we drew a line in the

         20        sand on that issue.  It's not only the issue that

         21        bothers me, but the time schedules bother me.  I

         22        reluctantly decline to accept that, if I'm saying the

         23        right words.

         24             CHAIRMAN DOUGLASS:  Well, it has to be unanimous,

         25        and therefore, we'll have to take it up today,


          1        Commissioner Connor.  Am I right on that, Commissioner

          2        Barkdull?

          3             COMMISSIONER BARKDULL:  Yes, sir.  Commissioner

          4        Connor, would you like to defer or would you like to

          5        take it up now?

          6             COMMISSIONER CONNOR:  It doesn't matter.

          7             CHAIRMAN DOUGLASS:  Commissioner Barkdull.

          8             COMMISSIONER BARKDULL:  Let me conclude the

          9        special order report which is on your desk.  You have

         10        an additional volume three, which is your green

         11        volume.  We'll be working out of all three books

         12        today.  I want to call your attention to the fact that

         13        the Select Committee on Sovereign Immunity is to meet

         14        at noon today.

         15             I also want to call your attention to the fact

         16        that we are next scheduled to meet on Monday,

         17        February 9th.  We'll come in at 1:00.  Your calendar

         18        that's been submitted to you indicates that we'll

         19        conclude at 1:00 on Thursday.  I think you better hold

         20        that a little bit flexible, because depending on how

         21        well our work goes, we may have to go until five that

         22        day.  I just wanted to alert you to that.

         23             The last meeting is in February and most of our

         24        work is going to have to be completed by the end of

         25        February, is the week of the 23rd, in which we come in


          1        at 1:00 on Monday and it shows us concluding at

          2        1:00 on Friday.  Once again, on that Friday, you

          3        better be flexible, we may not get out of here at

          4        1:00 on Friday.  I just call that to your attention

          5        because I know reservations are going to be difficult

          6        this time of year.

          7             In that connection, you have received on your

          8        desk and you will receive in your home offices when

          9        you get back there, the information relative to these

         10        sites and particular hotels for the public hearings in

         11        Fort Lauderdale and St. Petersburg.  I ask you to make

         12        your reservations for those planning to attend

         13        promptly, because there's a cutoff date of

         14        February 12th and 13th of February.

         15             The public hearing in Tallahassee has not been

         16        formally scheduled yet and we will notify you as soon

         17        as possible when that is because we recognize, also,

         18        that it'll occur during the time of the Legislature

         19        being in session, so hotel rooms and transportation

         20        may be difficult up here.

         21             We have a fairly ambitious calendar today and

         22        hopefully we can conclude all of the items on there.

         23        Some of them are going to be controversial, which is

         24        understandable.  The -- I would be interested in

         25        whether Commissioner Mills who had a Style and


          1        Drafting Committee meeting this morning wants to make

          2        any comments to the group in reference to that.

          3             CHAIRMAN DOUGLASS:  Commissioner Mills, I guess

          4        you can comment on that.

          5             COMMISSIONER MILLS:  Thank you, Mr. Chairman.

          6        The style and drafting committee did meet this morning

          7        at 8:00, full attendance, all attended, and that

          8        committee will meet again next Wednesday here.  We

          9        all -- we appreciate any questions or input you may

         10        have.  We have, I think at this point, passed about 35

         11        propositions.  I think it is worth saying one thing,

         12        Mr. Chairman, that it seems that thematically, this

         13        commission has been consistent.  It has dealt with a

         14        series of important issues that we heard about, in

         15        terms of education, environment, access to government.

         16             And I think although it's hard to see the forest

         17        when you are in the trees here, I think that

         18        ultimately you are going to see that this commission

         19        has done a very sound job of responding to what people

         20        were saying.

         21             But since this commission possesses so much

         22        intelligence and interest in these issues, we

         23        appreciate, if anybody wants to attend the meeting

         24        next Wednesday, I will certainly notice that.  And if

         25        any members want to come and give their opinions, we


          1        appreciate it.  But it's next Wednesday from 10:00

          2        until 5:00 p.m. in the commission conference room.

          3        Thank you, Mr. Chairman.

          4             CHAIRMAN DOUGLASS:  All right.  Commissioner

          5        Barkdull.

          6             COMMISSIONER BARKDULL:  That concludes the action

          7        of the Rules Committee.  I suggest we revert to the

          8        special order calendar, the item on reconsideration by

          9        Commissioner Connor.

         10             CHAIRMAN DOUGLASS:  Okay.  Commissioner Freiden,

         11        did you have something on this subject?

         12             COMMISSIONER FREIDEN:  I just wanted to -- if

         13        it's an appropriate time, to withdrawal Proposal 121,

         14        the one that Commissioner Scott referred to, one of

         15        the ones that he waived out of the committee.

         16             CHAIRMAN DOUGLASS:  All right.  Without

         17        objection, Proposal No. 121 is withdrawn from your

         18        consideration.  We'll now proceed with the special

         19        order, Proposal 107, by Commissioner Connor.  It was

         20        disapproved by the Committee on Declaration of Rights,

         21        it failed on its appearance before the commission, the

         22        pending motion to reconsider by Commissioner Argiz,

         23        and then it was abandoned.

         24             But then on unanimous consent, we allowed

         25        Commissioner Connor to move to reconsider, and it's on


          1        that motion that we are presently scheduled to hear.

          2        And I would like to ask, with your permission, the

          3        clerk to read.

          4             READING CLERK:  Proposal 107, a proposal to

          5        revise Article I, Florida Constitution, providing that

          6        the state Constitution does not restrict the right of

          7        parents to consent to medical treatment for their

          8        minor children.

          9             CHAIRMAN DOUGLASS:  Now, do you recall the vote

         10        by which that --

         11             COMMISSIONER CONNOR:  I believe it was 12 to 18.

         12             CHAIRMAN DOUGLASS:  Eighteen to 12, 12 yeas, 18

         13        nays?

         14             COMMISSIONER CONNOR:  Yes, sir.

         15             CHAIRMAN DOUGLASS:  Okay.  Proceed with your

         16        presentation.

         17             COMMISSIONER CONNOR:  Mr. Chairman, it's not my

         18        intent to re-debate the merits of the issue.  The

         19        rationale simply behind this motion is as follows,

         20        there were several folks who were unable to be present

         21        in the body at this time this matter came up and who

         22        wanted to vote and could not vote on the motion.

         23             We don't have enough votes, frankly, to pass that

         24        motion.  It's not my intent to re-debate it, but

         25        Commissioner Argiz, who voted on the prevailing side,


          1        made the motion because Commissioner Planas, who felt

          2        very strongly about the issue, had been unable to be

          3        in attendance.

          4             Commissioner Planas because of medical problems

          5        has been unable to be in attendance at this meeting as

          6        well.  And I simply wanted to request that we be

          7        permitted to carry the matter forward to the next

          8        session so that those folks would have the opportunity

          9        to vote on it if they were able to be in attendance at

         10        that time.  That is the sole basis for the motion.

         11             CHAIRMAN DOUGLASS:  Commissioner Alfonso.

         12             COMMISSIONER ALFONSO:  Comment.  I also, because

         13        of my situation at home, had to leave that afternoon

         14        of that session last time and I also felt strongly

         15        about the issue, so I would be another vote for it.

         16             CHAIRMAN DOUGLASS:  In other words, you didn't

         17        have parental consent to be here that day; is that

         18        right?

         19             COMMISSIONER ARGIZ:  That's correct, Mr.

         20        Chairman.

         21             CHAIRMAN DOUGLASS:  Commissioner Evans.

         22             COMMISSIONER EVANS:  Mr. Chairman, I didn't have

         23        parental consent, but I had the Chairman's consent not

         24        to be here that day.

         25             CHAIRMAN DOUGLASS:  You are right.


          1             COMMISSIONER EVANS:  And this is an issue of

          2        particular importance to me.  It's one that, if

          3        you-all will remember in our legislative careers, the

          4        Legislature dealt with and, in fact, was challenged,

          5        was found unconstitutional.

          6             So, this is the only way we can ever address this

          7        particular issue because the Legislature has addressed

          8        it.  I can't remember the year, can you, Senator

          9        Scott?  '88, that it did pass, and it passed the

         10        Legislature and it was not vetoed by the Governor, but

         11        it was challenged in court and was found

         12        unconstitutional.

         13             So, this is the only remedy, we are the only spot

         14        in which we can deal with this particular issue.  If

         15        you can find it in your heart to allow one more debate

         16        on this, I would ask that, in fact, you allow

         17        Commissioner Connor to move for reconsideration to be

         18        extended until our next meeting.  And I would ask

         19        Commissioner Connor, as we try to do in the

         20        Legislature, to at least get everybody who is

         21        interested in this subject in one spot at one time.

         22             CHAIRMAN DOUGLASS:  We are on the motion to

         23        reconsider already.  It has been -- while you were not

         24        here, it did not achieve being carried over so -- at

         25        this point, on the motion to reconsider.  And I will


          1        ask that you open the machine and vote on whether or

          2        not we'll reconsider.  If you vote to reconsider, we

          3        will have full debate again on this matter.  Announce

          4        it.

          5             READING CLERK:  Twelve yeas and 14 nays,

          6        Mr. Chairman.

          7             CHAIRMAN DOUGLASS:  We vote not to reconsider,

          8        Commissioner Connor.  We'll move to -- on the special

          9        order calendar to Proposal No. 135 by Commissioner

         10        Henderson.  Would you read it, please?

         11             READING CLERK:  Proposal 135, a proposal to

         12        revise Article VII, Section 4 of the Florida

         13        Constitution; adding lands used for conservation

         14        purposes to those lands that may, by law, be assessed

         15        for tax purposes on the basis of their character or

         16        use.

         17             CHAIRMAN DOUGLASS:  All right.  Commissioner

         18        Henderson, you are recognized.

         19             COMMISSIONER HENDERSON:  Mr. Chairman, there

         20        should be an amendment at the desk.  I don't know that

         21        it has been distributed.

         22             READING CLERK:  On the desk, Mr. Chairman.

         23             CHAIRMAN DOUGLASS:  There is an amendment on the

         24        desk by Commissioner Henderson to his proposal.  Would

         25        you read the amendment, please?


          1             READING CLERK:  By Commissioner Henderson, delete

          2        everything after the proposing clause and insert

          3        lengthy amendment.

          4             CHAIRMAN DOUGLASS:  All right.  As I understand

          5        the amendment -- maybe you better just explain it.

          6             COMMISSIONER HENDERSON:  Thank you, Mr. Chairman.

          7        This -- and Mr. Mills is rising to assist me with the

          8        amendment.  There were two matters that were

          9        considered by Finance and Tax, both received favorable

         10        recognition or favorable report.  Yesterday afternoon,

         11        the Finance and Tax Committee approved this language

         12        after a very good debate and a very good staff

         13        analysis on this issue.  And what we have here is what

         14        we think is a very good two-step process to

         15        accommodate this issue.

         16             It'll require general law on the subject and also

         17        it'll require a local vote or vote at the local level.

         18        What this does is provide an ability to give

         19        incentives to landowners who are good stewards of the

         20        land, who are using their property for conservation

         21        purposes.  This is a way to reward them for their

         22        practices.

         23             It is -- we have worked long and hard with

         24        representatives of the land-owning community and

         25        private landowners throughout the state and it's come


          1        to this point, and so this is a good way to effect

          2        additional conservation rewards from the other areas

          3        that we have discussed.  And I think Mr. Mills would

          4        like to contribute to this as well.

          5             CHAIRMAN DOUGLASS:  Commissioner Mills.

          6             COMMISSIONER MILLS:  Well, Mr. Chairman, what

          7        this amendment is, was my Proposal 109, which was

          8        referred to the Committee on Finance and Fax and it

          9        passed yesterday unanimously.  And what it does is

         10        accord local governments the discretion to implement a

         11        conservation easement as an exemption.  Commissioner

         12        Henderson's original proposal dealt with assessments.

         13             Constitutional authority is required to allow an

         14        exemption.  Now, the exact design of that exemption

         15        and the definition of conservation, which,

         16        Mr. Chairman, you were concerned about your lake, will

         17        be defined by general law.

         18             During yesterday's debate, Finance and Tax have

         19        used the definition in the current law for land

         20        acquisition, but it was the thought of the committee

         21        that more constitutional language, to accord it to the

         22        Legislature to define that.  This is a rational way to

         23        encourage conservation and preserve private property

         24        rights.  And it leaves it in the discretion of the

         25        counties and the cities to do that.


          1             How this practically would work is, since you now

          2        have constitutional authority to have an exemption,

          3        the Legislature can implement that exemption,

          4        otherwise they couldn't because there's limited

          5        authority to grant exemptions.  So the Legislature may

          6        now define a conservation easement, in terms of what

          7        kind of activity would be conservation.

          8             Yesterday, and again, very good staff work by

          9        Commissioner Scott's staff, they used the land

         10        acquisition language for conservation to define it.

         11        It was the committee's view that that was too much

         12        language to put in the Constitution, and just by

         13        saying general law here, the Legislature will do that.

         14             And once this has been approved by the

         15        Legislature, then any county or city may opt in to the

         16        process designed by the Legislature.  What this does

         17        is it allow counties and cities to make their own

         18        tax-based decisions.  And there's some counties and

         19        cities that may want to do it, some that may not.

         20             And practically what would happen is either

         21        conservation organizations or landowners, seeing this

         22        as an option, will go to their county and say, I would

         23        like to place my land in conservation under this

         24        definition and I will not use it for a period of years

         25        as provided by the statute, and for that I wish to


          1        apply for this property tax exemption, so therefore

          2        there is an incentive for the person to do it.  And if

          3        the county does not want to do it, they don't have to.

          4             CHAIRMAN DOUGLASS:  Incidentally, I don't want to

          5        break this debate, but I think my ruling on the motion

          6        to reconsider was incorrect.  It takes a waiver of the

          7        rules to do what Commissioner Connor wanted to do and

          8        that only -- that requires a two-thirds' vote, it

          9        doesn't require a unanimous vote.  And therefore, if

         10        somebody would raise the point of order that I've

         11        raised on myself here, we'll revert to that and vote

         12        on whether or not the motion that was made by

         13        Commissioner Connor, which was to defer the

         14        reconsideration until the next meeting, we should

         15        waive the rules and allow that to carry it forward.

         16        And I think maybe some of the people that felt that,

         17        they didn't get an opportunity to discuss this again,

         18        which they wanted.

         19             And in looking at it, I think I made a mistake,

         20        and the 18 to 12 vote would indicate that we don't

         21        have the necessary votes to defeat the waiver of the

         22        rule and I made an incorrect ruling by requiring

         23        unanimous vote.

         24             With your permission, without objection, I would

         25        ask that we revisit that now before we get too far


          1        away from it and vote on whether or not we waive the

          2        rules to carry over the motion to reconsider Proposal

          3        107 by Commissioner Connor until the January -- until

          4        the next meeting of the commission.  Commissioner

          5        Scott was up.

          6             COMMISSIONER SCOTT:  Well, I was going to, at

          7        your request, Mr. Chairman, I will make the point of

          8        order.  And the motion, then, would be to postpone the

          9        reconsideration.

         10             CHAIRMAN DOUGLASS:  Correct, which was

         11        Commissioner Connor's motion.

         12             COMMISSIONER SCOTT:  Which would require a

         13        two-thirds vote to waive the rules.  And I just want

         14        to say one thing.  I mean, Commissioner Jennings has

         15        asked that this be deferred because it was taken up on

         16        a day that she was not here.  I don't like

         17        particularly debating these issues for the second and

         18        third time.  They are very heartrendering, emotional

         19        issues, but we have already done it five or six times.

         20        And what's wrong with doing it once more as a courtesy

         21        to commissioners that have asked for this

         22        consideration?

         23             So, I would speak in favor of reconsidering --

         24        regardless of how you vote on the merits of it, you

         25        know, I think it could well be one of you who could be


          1        in this position at some point on the main issue or

          2        the most important issue that you have up here.  So I

          3        would ask that we defer it, it's not a vote on the

          4        merits, and give them a chance to reconsider it.

          5             CHAIRMAN DOUGLASS:  Okay.

          6             COMMISSIONER BARKDULL:  Mr. Chairman.

          7             CHAIRMAN DOUGLASS:  I think Commissioner Zack was

          8        up.

          9             COMMISSIONER BARKDULL:  Mr. Chairman, first off,

         10        this motion, first takes a two-thirds vote of the full

         11        motion, secondly, it's without debate, and thirdly,

         12        I'm going to vote for it.

         13             COMMISSIONER ZACK:  Mr. Chairman, each of us have

         14        issues that are very, very important to us and I

         15        venture to say, other than the Chairman, there won't

         16        be anybody who will be in attendance every day on

         17        every vote in this chamber.  My concern, and I'm very

         18        sensitive to this issue and to the strong feelings

         19        that people have regarding this issue, there are like

         20        issues that each of us have.

         21             However, my point of information is, this matter

         22        was extremely well debated and I don't believe that

         23        anything more could be added to either side of this

         24        debate.  Is there a way that those people who wish to

         25        state their support of one position or the other who


          1        were not in attendance can do that in some other way,

          2        such as being put on the record, having their position

          3        put on the record as being, had they been here, would

          4        have adopted the positions that have been stated by

          5        either side?  My concern again is a time concern.

          6             CHAIRMAN DOUGLASS:  Let me say it again, that's

          7        not before --

          8             COMMISSIONER ZACK:  For point of information, can

          9        that be done?

         10             CHAIRMAN DOUGLASS:  My answer to that is, I'm

         11        going to rule it, it hasn't been done, and to my

         12        knowledge we haven't provided a vehicle for it.  What

         13        we are on is, correctly on, is the motion of -- which

         14        we were not correctly on, Commissioner Connor's motion

         15        to put off the vote on reconsideration on this

         16        Proposal No. 107 until the next meeting.  And I think,

         17        in response to your inquiry, my understanding, that I

         18        have been told by Commissioner Connor, and he stated

         19        this, maybe not as directly as I'm going to, but he

         20        stated it on the floor that there were members who

         21        were here today who were not here in the debate that

         22        wanted to speak, cannot speak something on the record.

         23             And when I realized what I had done, I reversed

         24        that and we are now on Commissioner Connor's motion to

         25        delay the reconsideration of this matter until the


          1        next meeting.  And the Chair, if you will give me your

          2        attention, I feel, and this is a matter of personal

          3        feeling on this, that we should honor the motion of

          4        Commissioner Connor for the reasons he's stated.

          5             And even though I tend to agree with those who

          6        say that we have debated this and re-debated it and so

          7        on, that is not the feeling of a substantial number of

          8        members, and I think we should afford that courtesy to

          9        Commissioner Connor.

         10             That's my own view, and that's one of the reasons

         11        I went back and asked about the rules and found out

         12        that I had improperly interpreted the rules.  So, if

         13        you want to speak to the motion which is on the floor,

         14        which is to -- to go forward -- commissioner Thompson.

         15             COMMISSIONER THOMPSON:  Mr. Chairman, I don't

         16        care how we come out here.  I voted with him last

         17        time, I am going to vote with him this time, but the

         18        rules are the rules and a motion to waive the rules is

         19        non-debatable in every parliamentary forum I've ever

         20        been in and under 9.2 it's that way here.

         21             CHAIRMAN DOUGLASS:  You are absolutely right, the

         22        point of order is well taken.  We will proceed to

         23        vote.  All in favor of Commissioner Connor's motion,

         24        say aye.  Opposed?

         25             It passes by two-thirds vote and it is delayed


          1        until the next meeting of the commission.

          2             (Verbal vote taken.)

          3             CHAIRMAN DOUGLASS:  Let's go ahead now that I

          4        have completely interrupted Commissioner Henderson and

          5        Commissioner Mills with my inept performance in the

          6        Chair, we'll go forward.  Commissioner Mills, you have

          7        the floor.

          8             COMMISSIONER MILLS:  Mr. Chairman, I think that

          9        we have explained it and if there were any questions.

         10             CHAIRMAN DOUGLASS:  Well, there were some people

         11        not in the chamber, and I'm sure Commissioner

         12        Henderson can explain again what he's doing, or you

         13        can.

         14             COMMISSIONER MILLS:  Okay.  This is a proposal

         15        for a conservation easement.  It was passed

         16        unanimously out of Finance and Tax yesterday.  What it

         17        does is accords to local governments the authority to

         18        grant an easement for conservation purposes.

         19        Conservation purposes will be defined by general law.

         20             Yesterday we had a staff that did tremendous work

         21        on this, had defined conservation in the Constitution

         22        as the language of the conservation recreation lands

         23        program, which includes all of the purposes for which

         24        you can -- the public can buy land.

         25             So, it made sense that if you are going to grant


          1        an exemption it should be for the same purposes that

          2        the public would otherwise spend money.  So, what this

          3        does is say it will be defined by general law.  Also,

          4        the process will be defined by general law.  But the

          5        decision and negotiation is on the county level.

          6             And the reason for that is each individual

          7        county, there may be some counties that may not want

          8        to do it, there may be some counties that do.  And

          9        once the general law has passed, the county has that

         10        option.  And the other result is the land owner has

         11        the incentive to put their land in conservation and

         12        use it for conservation purposes and they get a real

         13        tax break.  The need for it is the Legislature cannot

         14        give an exemption unless the Constitution so

         15        authorizes.

         16             CHAIRMAN DOUGLASS:  Commissioner Scott.  All

         17        right.  Would those in the back of the room please --

         18        that are caucusing there, un-caucus a little bit for

         19        us, will you?  Thank you very much.

         20             COMMISSIONER SCOTT:  Just briefly in favor of

         21        this.  There is a definition in the statutes in what's

         22        called the Carl (phonetic) program for purchase of

         23        environmental lands for conservation.  The first draft

         24        of this had that laid out in the Constitution, but

         25        upon reflection, after the committee deliberated, we


          1        felt that it would be better to just leave it to

          2        general law because we might want to change it or it

          3        might not be what we want.

          4             So, I think this version will accomplish the

          5        purpose and I think it is a very worthwhile purpose.

          6        We are going to hopefully see more and more of people

          7        doing this in the Legislature and the county or

          8        municipality would have to approve it under whatever

          9        terms and conditions they want to put it on.

         10             CHAIRMAN DOUGLASS:  Commissioner Scott is

         11        chairman of Finance and Tax.  This then puts it in the

         12        Legislature, the power, so what can be exempted --

         13        define what can be exempted, is that correct?

         14             COMMISSIONER SCOTT:  For what purpose, yes, it

         15        does.

         16             CHAIRMAN DOUGLASS:  And then the counties, under

         17        the framework of the general law, can do it; is that

         18        correct?

         19             COMMISSIONER SCOTT:  Right.

         20             CHAIRMAN DOUGLASS:  The reason I ask that, this

         21        is not something that would create a loss of revenue,

         22        necessarily, to the counties; it would have to be for

         23        a specific purpose and go through the legislative

         24        definition and then through some action by the local

         25        body before it was done?


          1             COMMISSIONER SCOTT:  That's correct.  They would

          2        then have to do it if they wanted to under whatever

          3        term.  We talked about some years, ten years, or

          4        whatever, but I think that should be -- and what would

          5        happen if somebody started doing it and then quit, but

          6        we will deal with that, the Legislature can deal with

          7        that, and the county or municipality in their

          8        ordinance can deal with it.

          9             COMMISSIONER MILLS:  And, Mr. Chairman, that's

         10        why the option is local, because they would make that

         11        decision as to revenue loss.

         12             CHAIRMAN DOUGLASS:  All right.  So, basically,

         13        from our standpoint, the Constitution is

         14        revenue-neutral on this?

         15             COMMISSIONER MILLS:  Correct.

         16             CHAIRMAN DOUGLASS:  It has to be action before

         17        anything is done.  All right.  Any more proponents?

         18        Any opponents?  To close, Commissioner Henderson.

         19             COMMISSIONER HENDERSON:  Mr. Chairman, first of

         20        all, not necessarily -- I will close, but the staff

         21        prepared this amendment and I think the record should

         22        accurately reflect that this is Mr. Mills' amendment.

         23        Mr. Mills has been telling me all along he had a

         24        better idea on this mater than I did, and the

         25        committee has proved him right on this.


          1             We have spent a lot of time working with private

          2        property owners in the state in trying to come up with

          3        a way to create incentives for private conservation.

          4        This does it.  And I think it'll go a long way with us

          5        rewarding good stewardship.

          6             CHAIRMAN DOUGLASS:  You know, you are closing on

          7        the amendment.

          8             COMMISSIONER HENDERSON:  Yes, sir, this is it.  I

          9        am going to sit down and it'll be over.  I got what I

         10        came for, Mr. Chairman.

         11             CHAIRMAN DOUGLASS:  Okay.  You are closing on

         12        everything, then.  All right.  All of those in favor

         13        of the amendment, say aye.  Opposed?

         14             (Verbal vote taken.)

         15             CHAIRMAN DOUGLASS:  The amendment is adopted and

         16        now we will vote on the proposal.  I'll ask

         17        Commissioner Henderson to just read us that last

         18        little line that you are adding to the Constitution,

         19        and then we'll vote.

         20             COMMISSIONER HENDERSON:  Thank you.  We the

         21        people of the United States -- sorry, wrong page.

         22             (Laughter.)

         23             CHAIRMAN DOUGLASS:  That was last night.

         24             COMMISSIONER HENDERSON:  Wrong page.  Any county

         25        or municipality may, for the purposes of its


          1        respective tax levy and as authorized by general law,

          2        grant ad valorem tax exemptions to owners of property

          3        used for conservation purposes as defined by general

          4        law.

          5             CHAIRMAN DOUGLASS:  All right.  Open the machine

          6        and we'll vote.

          7             CHAIRMAN DOUGLASS:  Has everybody voted?  Lock

          8        the machine and announce the vote.

          9             (Vote taken and recorded electronically.)

         10             READING CLERK:  Twenty-three yeas and zero nays,

         11        Mr. Chairman.

         12             CHAIRMAN DOUGLASS:  All right.  We'll proceed to

         13        the next proposal, which is committee substitute for

         14        Proposal 184 by the Committee on Ethics and Elections,

         15        and Commissioner Mills recommended as a committee

         16        substitute by the Committee on Ethics and Elections

         17        and it was deferred until this week with pending

         18        amendment number one by Commissioner Mills and

         19        Freiden.  Is the amendment on the table?

         20             READING CLERK:  It's on the desk, Mr. Chairman.

         21             CHAIRMAN DOUGLASS:  First of all, read the

         22        proposal.

         23             READING CLERK:  Committee substitute for proposal

         24        No. 184, a proposal to revise Article VI, s.1, Florida

         25        Constitution, providing that the Legislature shall


          1        prohibit certain conduct in connection with elections.

          2             CHAIRMAN DOUGLASS:  Commissioner Mills moves the

          3        amendment.

          4             COMMISSIONER MILLS:  Mr. Chairman.

          5             CHAIRMAN DOUGLASS:  You have got another one?

          6             COMMISSIONER MILLS:  Commissioners Freiden and

          7        Rundle have a substitute.  And if you want to argue

          8        with them, go right ahead.

          9             CHAIRMAN DOUGLASS:  I wouldn't dare.  So, what we

         10        are fixing to deal with is the latest one, which is

         11        really your amendment, you withdrew the other one and

         12        this is your amendment; is that correct?  It's moved

         13        by you?

         14             COMMISSIONER MILLS:  Commissioner Freiden.

         15             CHAIRMAN DOUGLASS:  Commissioner Frieden.  All

         16        right.  Would you read the amendment, which is this

         17        one?  All right.  He gave me the wrong one.  She is

         18        going to read it.

         19             READING CLERK:  By Commissioners Freiden and

         20        Rundle, delete everything after the proposing clause

         21        and insert lengthy amendment.

         22             CHAIRMAN DOUGLASS:  All right.  Who wants -- what

         23        you have done is just rewritten it, right; is that

         24        correct?  And that's the amendment.  So, if we adopt

         25        the amendment, then we'll move to vote on the


          1        proposal.  And you are now recognized to explain the

          2        amendment.  And Commissioner Freiden, who moved it,

          3        yields to you.

          4             COMMISSIONER MILLS:  Mr. Chairman, let me explain

          5        how we got here briefly so people will at least

          6        understand what this proposal deals with.  The issue

          7        that we were concerned with was fraud and deceit

          8        during elections and the fact that it was difficult or

          9        impossible to remove people for their conduct during

         10        elections.  It is available to remove people for their

         11        conduct in office.

         12             There are, of course, First Amendment issues that

         13        we had to deal with.  And I think we were at a point

         14        where we thought it would be difficult, if not

         15        impossible, to do it, but with terrific staff work and

         16        with Commissioner Freiden's and Rundle's advice, they

         17        have simplified this to the point where it may

         18        actually accomplish that purpose with just a phrase.

         19        Commissioner Freiden I think might want to explain how

         20        she reached this conclusion.

         21             COMMISSIONER FREIDEN:  Commissioners, really I --

         22             CHAIRMAN DOUGLASS:  Commissioner Rundle.

         23             COMMISIONER RUNDLE:  Thank you, Mr. Chairman.

         24        You may remember that the previous amendment, we

         25        really tried to outline all of the types of behavior


          1        that occurs during an election and we tried to

          2        prohibit those activities.  And instead what we found

          3        was this language was much clearer.

          4             And essentially what it does is what Commissioner

          5        Mills said, it now allows for suspension removal for

          6        the bad acts that are done during an election.  And so

          7        the amendment really basically says, Not only as a

          8        public officer, but also as a candidate.  So, we would

          9        urge that you adopt this amendment.

         10             CHAIRMAN DOUGLASS:  All right.

         11             COMMISSIONER RUNDLE:  I do believe that copies do

         12        need to be distributed.

         13             CHAIRMAN DOUGLASS:  I think they have been

         14        distributed, I think.

         15             COMMISSIONER FREIDEN:  Mr. Chairman, I believe

         16        they are being distributed or about to be distributed.

         17        Has the language been read?

         18             CHAIRMAN DOUGLASS:  Yes.  What she said is delete

         19        everything after the proposing clause and insert

         20        Section 1.

         21             COMMISSIONER FREIDEN:  Why don't I read to the

         22        commissioners while it's being handed out because it

         23        really is a very simple -- we went from a very

         24        complicated amendment to a very simple amendment, a

         25        very simple proposal.


          1             CHAIRMAN DOUGLASS:  Before we go forward, I have

          2        got two or three amendments that's been handed to me

          3        and I think the commissioners do too.  This doesn't

          4        have that language in it about evidencing -- you took

          5        that out?

          6             COMMISSIONER FREIDEN:  No, that's why I want to

          7        read this to you.  This is what it says.  I'm going to

          8        read you the existing language and I am going to tell

          9        you when we get to the language what we want to add

         10        in.

         11             It says, this is under Article IV, s.7

         12        Suspensions, filling office during suspensions,

         13        Subsection A, by executive order stating the grounds

         14        and filed with the Secretary of State the Governor may

         15        suspend from office any state officer not subject to

         16        impeachment, any officer of the militia not in the act

         17        of service of the United States, or any county officer

         18        for misfeasance -- I'm sorry, for a malfeasance or

         19        misfeasance while in office or as a candidate for

         20        office.

         21             Now, what we have done, the added language is

         22        "while in office or as a candidate for an office, at

         23        the present time the Governor can suspend an officer

         24        if that person engages in malfeasance or misfeasance

         25        in office."  All we are doing is adding in language


          1        here that includes the possibility for the Governor to

          2        suspend one of these people in these -- a state

          3        officer or others in these categories from office if

          4        they have engaged in malfeasance or misfeasance during

          5        the course of their campaign; in other words, if they

          6        got to that point as a result of some kind of

          7        malfeasance or misfeasance.

          8             Now, you ask -- I knew you were going to ask

          9        this.  What is malfeasance or misfeasance?  And I've

         10        been handed by our general counsel a -- what is this,

         11        Debbie?  This is the manual of practice and procedure

         12        on executive suspensions, and in here there is a

         13        definition of malfeasance and a definition of

         14        misfeasance, and apparently these are terms of art

         15        that have been used in connection with executive

         16        suspensions forever, through Florida history.

         17             Malfeasance has reference to evil conduct or an

         18        illegal deed, the doing of that of which one ought not

         19        to do, the performance of an act by an officer in his

         20        official capacity that is wholly illegal and wrongful,

         21        which he has no right to perform or which he has

         22        contracted not to do.

         23             Misfeasance is sometimes loosely applied in the

         24        sense of malfeasance, appropriately used, misfeasance

         25        has reference to the performance by an officer in his


          1        official capacity of a legal act in an improper or

          2        illegal manner, while malfeasance is the doing of an

          3        official act in an unlawful manner.  Misfeasance is

          4        literally a misdeed or a trespass while nonfeasance

          5        has reference to the neglect or refusal.

          6             We are not talking about nonfeasance here, so

          7        essentially, we had originally proposed this with a

          8        list of categories of things that included things like

          9        fraud and deceit, a judgment of liable or slander,

         10        commission of a felony, commission of a hate crime.

         11             And I think all of you who read that amendment

         12        looked at this and got a little uncomfortable with the

         13        length of it, and I think this essentially does the

         14        same thing but leaves the determination of what is

         15        misfeasance and what is malfeasance up to traditional

         16        interpretations of those words.

         17             CHAIRMAN DOUGLASS:  Commissioner Corr.  And

         18        you're next, Commissioner Nabors.

         19             COMMISSIONER CORR:  A question, please.

         20             CHAIRMAN DOUGLASS:  Do you yield for a question?

         21        And she does.

         22             COMMISSIONER CORR:  Thank you.  It appears to me

         23        that in the amendment, that this would allow a

         24        candidate for office that is not currently an

         25        incumbent to do whatever they want, but the


          1        incumbent -- tell me how it is different because the

          2        original proposal went to a candidate for office, and

          3        this doesn't include a candidate for office unless

          4        they are already an officer.

          5             COMMISSIONER FREIDIN:  No, this is -- this would

          6        include a candidate who wins, they could then be

          7        suspended or removed from office.  It doesn't have to

          8        be an incumbent.

          9             COMMISSIONER CORR:  What if he loses?

         10             COMMISSIONER FREIDIN:  Well, it's not okay to

         11        have done that conduct.  If what you did during the

         12        course of the campaign arises to the level of a crime

         13        or a civil -- a violation of a tort or any other

         14        violation, then of course, the loser would be subject

         15        to appropriate sanctions.

         16             COMMISSIONER CORR:  Thank you.

         17             CHAIRMAN DOUGLASS:  All right.  Commissioner

         18        Nabors.

         19             COMMISSIONER NABORS:  Ms. Freidin, let me ask you

         20        a question and make sure I understand this.

         21        Commissioners Mills and Sundberg, get your attention

         22        too, as I read this, and I think I read it correctly,

         23        that it gives the Governor the right to suspend a

         24        Senator or a House member who is elected for

         25        activities that occurred while they were a candidate


          1        because they are not impeachable.  So it would apply

          2        to a House member or Senator --

          3             COMMISSIONER FREIDIN:  No.

          4             COMMISSIONER NABORS:  It would not?

          5             COMMISSIONER FREIDIN:  Now, because if you look

          6        at the way it exists presently the Governor may

          7        suspend from office any state officer not subject to

          8        impeachment.

          9             COMMISSIONER NABORS:  But only while in office.

         10             COMMISSIONER FREIDIN:  I am told that Article III

         11        provides that the Legislature is the sole judge of the

         12        seating of its members.

         13             COMMISSIONER NABORS:  Well, that's my question,

         14        that's what I'm concerned about.  I'm concerned

         15        whether this creates a conflict between that because

         16        this is the first time that we have a provision -- I

         17        mean, House members and Senate members are not subject

         18        to impeachment.  Okay.  Now that's one principle.  The

         19        other principle is we have a provision that says that

         20        the House members are the sole judges of the

         21        qualification.  This gives the right of the Governor

         22        then to suspend for an activity that occurred prior to

         23        elections.

         24             I'm concerned there is an inconsistency we have

         25        built in as to who is the judge of the qualifications


          1        for an alleged campaign violation because we are now

          2        giving the Governor the right to suspend prior to --

          3        while something happened during the campaign.

          4             In other words, well, I think there is an

          5        ambiguity there.  I think we have a provision that

          6        says the House is the sole judge of its members.

          7             CHAIRMAN DOUGLASS:  Commissioner Barkdull, it is

          8        my understanding this doesn't affect any other

          9        provision of the Constitution such as that one he is

         10        talking about, the House and the Senate still judge

         11        the qualifications of their members.  And

         12        traditionally they have the authority to expel from

         13        their membership anybody for any reason that they

         14        collectively decide.

         15             COMMISSIONER BARKDULL:  Yes, sir.

         16             CHAIRMAN DOUGLASS:  And, therefore, this wouldn't

         17        apply and is not necessary because the Legislature can

         18        now remove or expel or censor for whatever they did,

         19        because I've been involved in a couple of those where

         20        they did.  I want to make that clear.  The Governor,

         21        on the other hand, only suspends now.  And then the

         22        suspension is submitted to the Senate, and this would

         23        still be the case, and if the Senate doesn't act or

         24        they confirm it, the person is then removed.

         25             And if the Senate refuses to go along with the


          1        Governor, then it is a non-event, he retains his

          2        office.  All this does, as I understand it from

          3        Commissioner Freidin, Commissioner Sundberg, I think

          4        you will agree, all this does is add to the Governor's

          5        power of suspension acts that occurred in the -- while

          6        he was a candidate, and he would have to be elected

          7        before the Governor could suspend him.  Isn't that

          8        right, Commissioner Freidin?

          9             COMMISSIONER FREIDIN:  That's my understanding

         10        and intent.

         11             CHAIRMAN DOUGLASS:  Commissioner Freidin.

         12             COMMISSIONER FREIDIN:  I said that's my

         13        understanding and that's the intent.

         14             COMMISSIONER NABORS:  I want to make sure because

         15        of the amendments we are not affecting the current

         16        process in terms of the abilities of the House and

         17        Senate to judge the qualifications of its own members.

         18             COMMISSIONER SUNDBERG:  Mr. Chairman, I believe

         19        that that extends to whether or not a candidate who is

         20        elected is seated in the body, it doesn't just have to

         21        do with expulsion.  I think if they -- my recollection

         22        is that each of those bodies has the authority to say,

         23        You say you have been elected but we refuse to seat

         24        you here.

         25             CHAIRMAN DOUGLASS:  And they could do that.


          1             COMMISSIONER SUNDBERG:  Right.  So that will

          2        never, under the current state of the law, and in the

          3        Constitution, the Governor will never be able to or

          4        should not be able to remove someone for -- you know,

          5        any House or Senate member for activities even

          6        preceding their activities in the chamber.

          7             CHAIRMAN DOUGLASS:  And this wouldn't do that, as

          8        I understand it.  And not only wouldn't, it can't

          9        under the separation of powers doctrine.

         10             COMMISSIONER SUNDBERG:  Right, correct.  But I

         11        wasn't sure that you were including in there they have

         12        the abilities to seat or not seat.

         13             CHAIRMAN DOUGLASS:  You're absolutely right, they

         14        don't have to expel, they can just say, We are not

         15        going to take you in the first place and you never get

         16        seated.  And probably this type thing, you are right,

         17        would probably come up in that manner unless it was

         18        discovered after he was seated.  Commissioner

         19        Barkdull.

         20             COMMISSIONER BARKDULL:  I want to be heard as an

         21        opponent.

         22             CHAIRMAN DOUGLASS:  All right.  Are there any

         23        more proponents who want to address this?  If not,

         24        Commissioner Barkdull, you are recognized as an

         25        opponent.


          1             COMMISSIONER BARKDULL:  Mr. Chairman, Members of

          2        the Commission, I support the proposition generally

          3        that people ought to obey the law and the election

          4        laws, but I don't think this is going to cure what the

          5        proponents want to do and it is going to raise a

          6        problem which history teaches us can occur.

          7             We had a change in Governors here about 40 years

          8        ago and the Governor that came in wiped out every one

          9        of the previous appointees because of misfeasance or

         10        nonfeasance in office.

         11             And it then was submitted to the Senate, the next

         12        one of their occasions that they met.  Now, the

         13        Governor when he does that doesn't necessarily have to

         14        cite the grounds.  All he did was just say that they

         15        weren't doing their jobs and he removed every one of

         16        them, the Road Board and the Regents and everything

         17        else.  That was Governor Johns.

         18             And what you are doing here is giving the Chief

         19        Executive the power by simply executing an executive

         20        order to remove people that have been elected to

         21        office.

         22             CHAIRMAN DOUGLASS:  Suspend.

         23             COMMISSIONER BARKDULL:  Suspend.  Well, they will

         24        not be able to function in their office until the

         25        Senate takes it up.


          1             CHAIRMAN DOUGLASS:  That's correct, but he can't

          2        remove them.

          3             COMMISSIONER BARKDULL:  You suspend them, the

          4        Senate is the only one that can remove them.  The

          5        first place, as I pointed out, malfeasance and

          6        misfeasance relates to something in an office.  As

          7        candidates, they are in an official office.  And I

          8        think this will not -- I think it opens the door.  For

          9        instance, you could get some Governors that have

         10        exercised some arbitrary power every now and then.  I

         11        realize it doesn't happen often.

         12             But if they didn't like a particular person that

         13        was elected for one reason or another, they could

         14        suspend them immediately and they don't -- the

         15        candidates have been elected under this, as I

         16        understand the way this proposal is supposed to

         17        operate, then the Governor immediately has power once

         18        they are seated to suspend them without any hearing

         19        until they get to the Senate.

         20             I think you are creating a very dangerous

         21        situation.

         22             CHAIRMAN DOUGLASS:  Commissioner Scott as an

         23        opponent.

         24             COMMISSIONER SCOTT:  I had a race one time

         25        where --


          1             CHAIRMAN DOUGLASS:  I wonder if you-all would pay

          2        attention, I think it is an important issue.

          3             COMMISSIONER SCOTT:  I had a race one time where

          4        my opponent took great liberty with the truth.  Among

          5        other things, he said that I was a member of the John

          6        Birch Society.  My wife went to a large function with

          7        a lot of Jewish constituents and someone said that to

          8        her.  And she said, John Birch, is he from New Jersey?

          9             But in any event -- and at one point, you know,

         10        you do reach a point with this where I basically used

         11        my best New York accent and said, at a large gathering

         12        in English and Hebrew, susichripsnach (phonetic), and

         13        I can't say it any more, but it meant that he was a

         14        liar, you know.

         15             So I suppose, technically, if I were elected to

         16        the county -- you know, whatever offices this covered,

         17        that the Governor could suspend me, if I had said he

         18        was a liar and somehow somebody said, Well, he really

         19        wasn't a liar, or something like that.

         20             I just think that the precedent of carrying over

         21        from conduct as a candidate to people in office -- I

         22        mean, we have had some rip-roaring campaigns where

         23        people have said and did whatever, and I just think

         24        that that's not -- I mean you have got an Elections

         25        Commission, you have got other ways, and to put that


          1        in the Constitution -- first of all, I don't know that

          2        it is constitutional, I mean, under the Federal

          3        Constitution.

          4             I just don't think it is a good idea.  It is one

          5        of the very few ideas that Commissioner Freiden has

          6        had that I didn't think was the greatest one.  So, I

          7        would urge that we don't do this.

          8             CHAIRMAN DOUGLASS:  Commissioner Brochin, does it

          9        violate the First Amendment?

         10             COMMISSIONER BROCHIN:  I think it has got

         11        problems, yes.

         12             CHAIRMAN DOUGLASS:  I knew you were pretty versed

         13        in that area.

         14             COMMISSIONER BROCHIN:  Well, I want to join in in

         15        the opposition.  Although I think it is very well

         16        intended, I agree with Commissioner Scott and

         17        Commissioner Barkdull that this goes beyond, I think,

         18        the intent in terms of trying to make fair campaigns.

         19             The problem is simply the First Amendment, if you

         20        consider that a problem.  But the First Amendment

         21        highly protects political speech, so to allow a

         22        Governor to suspend immediately upon somebody's

         23        election for actions dealing with political speech,

         24        which essentially would be because of terms known as

         25        misfeasance or malfeasance, which are broad in their


          1        context and definition, I think overreaches.  And it

          2        is a good idea in terms of trying to get at it, and it

          3        is a very, very difficult subject to get at, but I

          4        don't think this is the way to do it.

          5             CHAIRMAN DOUGLASS:  Commissioner Sundberg.

          6             COMMISSIONER SUNDBERG:  I too must speak in

          7        opposition.  I believe Commissioner Barkdull is

          8        absolutely correct.  I think misfeasance and

          9        malfeasance, while well-defined, are terms of art that

         10        relate only to acts by people in office and not to

         11        those.

         12             So, if you wanted to do this you would have to

         13        say malfeasance or misfeasance while in office, and

         14        then describe conduct by people who were candidates

         15        because I just don't think that that definition will

         16        get you where you need to be and I think that

         17        introduces confusion.  Moreover I agree with

         18        Commissioner Brochin, I think you have some very, very

         19        serious First Amendment problems with this.

         20             I mean, time and again the courts have said that

         21        political speech is supposed to be very robust and it

         22        is hard to draw the line between that which is

         23        permissible and it could conceivably have a chilling

         24        effect, so I must oppose it.

         25             CHAIRMAN DOUGLASS:  Commissioner Nabors.


          1             COMMISSIONER NABORS:  I add to the reasons why I

          2        oppose this, in addition to the others, is this is

          3        classically an area that needs legislative thought.

          4        We are dealing with these words of art and these types

          5        of interrelationships between free speech, public

          6        office and the power of the Governor.  It is a classic

          7        thing that we need legislation on, not constitutional

          8        amendments or we may have a misintended consequence.

          9             CHAIRMAN DOUGLASS:  Don't you have a statute now

         10        that allows people to be kept out of office if they do

         11        certain things, Commissioner Brochin, are you familiar

         12        with that?

         13             COMMISSIONER BROCHIN:  The Governor has certainly

         14        powers to suspend for misfeasance and malfeasance,

         15        neglect of duty, I think drunkenness is cited in

         16        there, and other reasons.  But as Commissioner

         17        Sundberg pointed out, those terms deal directly with

         18        while they are in office, and there is no statute that

         19        I know of at least that deals with the ability to

         20        suspend for activity or conduct prior to being seated

         21        for office.

         22             CHAIRMAN DOUGLASS:  Commissioner Rundle, you are

         23        blocked out by the supporters, the general counsel.

         24             COMMISSIONER RUNDLE:  They are very good

         25        blockers.


          1             CHAIRMAN DOUGLASS:  Right, they are experts.

          2             COMMISSIONER RUNDLE:  You know, I have been in

          3        discussion and I have listened to what my colleagues

          4        have said and I must admit that I too and many are now

          5        of the opinion that it does not really accomplish what

          6        we were trying to accomplish.  And we did try to do

          7        what Commissioner Sundberg said and we tried to list

          8        out the bad acts, and what we were trying to do was to

          9        give the Governor the power for -- that would extend

         10        for the activities of the bad acts before they became

         11        a public officer.  But try as we did, I'm afraid that

         12        we have failed.

         13             And now the question becomes whether or not --

         14        what do we do?

         15             CHAIRMAN DOUGLASS:  Let's vote.

         16             COMMISSIONER RUNDLE:  Do we withdraw this or go

         17        back, or what we may want to do is go back to the

         18        original one.  All right, so we will withdraw.

         19             CHAIRMAN DOUGLASS:  You can withdraw the

         20        amendment and we will be back on the Mills' amendment.

         21             COMMISSIONER RUNDLE:  All right.  Do you want to

         22        try that?  Let's try that.  Let's try that.

         23             CHAIRMAN DOUGLASS:  Let's save some time.

         24        Commissioner Mills, they don't know you up there.

         25             COMMISSIONER MILLS:  That may be good.


          1        Mr. Chairman, with all these good efforts we still

          2        haven't quite got there.  My intention would be to

          3        withdraw the whole thing if we can't get these

          4        scholars on something that everybody agrees to, so I

          5        would propose we temporarily pass it and I'm going to

          6        withdraw it at the end of the day if we can't get

          7        there.  Because I mean this has been --

          8             CHAIRMAN DOUGLASS:  The end of the day will be at

          9        1:30.

         10             COMMISSIONER MILLS:  That's fine.

         11             CHAIRMAN DOUGLASS:  Okay.  It won't be the end of

         12        the day for the session, but it will be the end of day

         13        for this.  We are going to take it up at 1:30.

         14             COMMISSIONER MILLS:  It may already be the end of

         15        the day for this.

         16             CHAIRMAN DOUGLASS:  I think you may be just

         17        delaying the ultimate result here.  All right.  Now,

         18        let's see, here is where we are.  Commissioner Rundle

         19        withdrew her amendment.  Commissioner Mills has

         20        withdrawn his amendment; is that correct, Commissioner

         21        Mills?

         22             COMMISSIONER MILLS:  (Inaudible).

         23             CHAIRMAN DOUGLASS:  She withdrew her amendment,

         24        and that leaves your amendment pending.  And you want

         25        to defer consideration of your amendment and the whole


          1        thing until 1:30?

          2             COMMISSIONER MILLS:  Perfect.

          3             CHAIRMAN DOUGLASS:  Then so be it, without

          4        objection.  Incidentally, somebody answer this, aren't

          5        judges subject to being removed from office for things

          6        they committed before they took office?

          7             COMMISSIONER BARKDULL:  They are, and under the

          8        jurisdiction of the JQC they take up items that

          9        occurred prior to the time they took office.  That has

         10        been an amendment that was approved I think in the

         11        '70s.

         12             CHAIRMAN DOUGLASS:  And that's still up to the

         13        Supreme Court as to what action is taken, correct?

         14        All right.  We are now moving to Committee Substitute

         15        for Proposal 64 by the Committee on Bonding and

         16        Investments.  And Commissioner Nabors recommended as a

         17        committee substitute and approved by the Committee on

         18        Bonding and Investments with a pending amendment by

         19        Commissioner Henderson.  First read the proposal.

         20             READING CLERK:  Committee Substitute for Proposal

         21        64, a proposal to revise Article VII, Section 11,

         22        Florida Constitution; providing for state bonds

         23        pledging all or part of a dedicated state tax revenue

         24        or the full faith and credit of the state for certain

         25        uses as provided by general law.


          1             CHAIRMAN DOUGLASS:  All right.  Now read the

          2        amendment by -- which is moved by Commissioner

          3        Henderson.

          4             READING CLERK:  By Commissioner Henderson, on

          5        Page 2, Lines 10 through 21, delete those lines and

          6        insert lengthy amendment.

          7             CHAIRMAN DOUGLASS:  Now, has the amendment been

          8        distributed?  This is Proposal 64 with the amendment

          9        which has been distributed, and it is in the red book;

         10        am I right?  Yes, it is in the red book toward the

         11        end.  If everybody would turn to it.  I'm corrected,

         12        this is a pink book.

         13             COMMISSIONER HENDERSON:  Mr. Chairman, I am

         14        trying to make it easier for you.

         15             CHAIRMAN DOUGLASS:  You are going to withdraw

         16        your amendment, right?

         17             COMMISSIONER HENDERSON:  I'll be glad to.  I'm

         18        trying to fix your problem, Mr. Chairman.

         19             CHAIRMAN DOUGLASS:  Not mine, I don't have a

         20        problem.

         21             COMMISSIONER HENDERSON:  Mr. Chairman, the

         22        easiest -- the easiest place to see the amendment is

         23        on Page 156 of the journal.  That is where it was

         24        presented yesterday and it appears in the upper

         25        right-hand corner of the page in italics, that is the


          1        language which is Amendment 1.  This is yesterday's

          2        Journal, Page 156, up at the top right-hand corner,

          3        Committee Substitute for Proposal 64, Amendment 1 is

          4        in italics.

          5             CHAIRMAN DOUGLASS:  And that is the amendment

          6        that you are proposing and that you are now wise to

          7        offer?

          8             COMMISSIONER HENDERSON:  That is correct.  And

          9        then when we complete this, I understand there is

         10        another amendment on the desk, I keep wanting to say

         11        Senator Crenshaw, Commissioner Crenshaw.

         12             CHAIRMAN DOUGLASS:  But it has not been moved; is

         13        that right?

         14             COMMISSIONER HENDERSON:  That's right, but I am

         15        just saying, that is the posture that we are in.

         16             CHAIRMAN DOUGLASS:  Okay.  So, on Page 156 of the

         17        Journal is the Amendment No. 1 which is being offered

         18        by Commissioner Henderson and he rises in support.

         19             COMMISSIONER HENDERSON:  Thank you, Mr. Chairman

         20        I'll be very brief to try to simplify this.  This is

         21        similar to the language which we adopted in January

         22        concerning the extension of bond authority to continue

         23        to allow us to purchase conservation lands.

         24             The question was raised about whether or not we

         25        even needed to reference the issue, the question of


          1        the issuance of full faith and credit.  So we have

          2        deleted that reference from this language, which again

          3        we have already adopted.  So this will simplify the

          4        matter, it would go to the Committee on Style and

          5        Drafting and we will put all this to bed.

          6             CHAIRMAN DOUGLASS:  All right.  Commissioner

          7        Barkdull.

          8             COMMISSIONER BARKDULL:  Commissioner Henderson,

          9        if this passes, this will substitute or replace 39?

         10             COMMISSIONER HENDERSON:  This is a --

         11        technically, no, because they are both live.  That one

         12        is already in the past, we are beyond

         13        reconsiderations.  My representation to you is that

         14        this is the one that needs to go forward, and that's

         15        what we would expect the Committee on Style and

         16        Drafting to do.

         17             COMMISSIONER BARKDULL:  That's the point that I

         18        wanted to be sure, that Style and Drafting was aware

         19        of, that this was to substitute for 39.

         20             COMMISSIONER HENDERSON:  In actuality, yes, sir.

         21             COMMISSIONER BARKDULL:  Thank you.

         22             CHAIRMAN DOUGLASS:  All right.  Does everybody

         23        understand -- does anybody want to debate the

         24        amendment?  If not, all in favor of the amendment say

         25        aye.  Opposed?


          1             (Verbal vote taken.)

          2             CHAIRMAN DOUGLASS:  It carries.  Now we are on

          3        the Proposal 64 as amended.  Another amendment.

          4        Amendment on the desk by Commissioner Crenshaw.  Would

          5        you read his amendment, please?

          6             READING CLERK:  By Commissioner Crenshaw on

          7        Page 2, Line --

          8             CHAIRMAN DOUGLASS:  Pay attention please, we need

          9        some order in the chamber.  Just a moment.

         10             READING CLERK:  And insert solely between payable

         11        and from.

         12             CHAIRMAN DOUGLASS:  Read it again, please.

         13             READING CLERK:  By Commissioner Crenshaw, on

         14        Page 2, Line 8, and insert solely between payable and

         15        from.

         16             CHAIRMAN DOUGLASS:  Commissioner Crenshaw, you

         17        are recognized on your amendment.

         18             COMMISSIONER CRENSHAW:  It is fairly

         19        self-explanatory, it adds the word solely.  What it

         20        does, Commissioners, it just puts the law back the way

         21        we all want it to be before we went too far the last

         22        time.  So now it says that if you issue these bonds,

         23        the proceeds have to be payable solely from a

         24        dedicated source of revenue, it takes away the whole

         25        issue of the full faith and credit of the state.


          1             CHAIRMAN DOUGLASS:  All right.  Do you agree to

          2        that amendment, Commissioner Henderson?  All in favor

          3        of the amendment say aye.  Opposed?

          4             (Verbal vote taken.)

          5             CHAIRMAN DOUGLASS:  It carries.  It is amended.

          6        And now we are on the proposal as amended, which

          7        really is the language that appears on 156 adding the

          8        word solely as proposed by Commissioner Crenshaw.  Is

          9        everybody aware now of what we are going to vote on

         10        after we debate, or is there further debate on this

         11        proposal?  It is also pointed out by Commissioner

         12        Barkdull that this is intended to replace Proposal 39

         13        which we previously passed.  Commissioner Henderson.

         14             COMMISSIONER HENDERSON:  Mr. Chairman, in

         15        response to some of the whispering questions on this

         16        side of the table, I will inform the Chair that this

         17        is the last conservation measure that I am going to

         18        stand on on this chamber.

         19             CHAIRMAN DOUGLASS:  Well, the Audubon Society

         20        owes you a raise, you have done extremely well, and

         21        obviously this is a green body that we have here.

         22        Now, without further debate, we will take this measure

         23        up on final passage.  Would you open the machine and

         24        we will vote.

         25             (Vote taken and recorded electronically.)


          1             CHAIRMAN DOUGLASS:  Has everybody voted?  There

          2        is one more coming.  One more coming.  All right.

          3        Lock the machine and announce the vote.

          4             READING CLERK:  Twenty-six yeas, zero nays,

          5        Mr. Chairman.

          6             CHAIRMAN DOUGLASS:  All right.  We will now move

          7        to Committee Substitute for Proposals 138 and 89 by

          8        the Committee on Education, and Commissioners Nabors

          9        and Riley, recommended as a committee substitute,

         10        combined with Proposal 89 and approved by the

         11        Committee on Education.  Would you read it, please?

         12             READING CLERK:  Committee Substitute for Proposal

         13        Nos. 138 and 89, a proposal to revise Article X,

         14        Section 15, Florida Constitution; limiting the use of

         15        State Lottery net proceeds to financing certain

         16        educational facilities or funding early childhood care

         17        and education programs.

         18             CHAIRMAN DOUGLASS:  Commissioner Riley, you are

         19        recognized to present the proposal.

         20             COMMISSIONER RILEY:  Thank you, Mr. Chairman.

         21        I'm going to give you a little bit of a history of it,

         22        because we didn't have a special select committee for

         23        Lottery funds.  So what we did instead was to take the

         24        different proposals and we have worked out a

         25        compromise between three of those four proposals and


          1        present that to you today.  We heard around the state

          2        about a lot of things, but we heard about the lack of

          3        the correct use of Lottery funds as seen by the people

          4        who voted in Lottery fund around the state.  And we

          5        were told that in fact Lottery funds would be used to

          6        enhance education and that's not what the public has

          7        seen.

          8             So what we have tried to do with these proposals

          9        is to put before you some very specific enhancement

         10        ideas of how these Lottery funds can be used.

         11        Commissioner Sundberg, Commissioner Nabors and myself

         12        all had separate proposals and those have been pulled

         13        together with this.

         14             Commissioner Corr has a separate one which will

         15        stand on its own.  And also Commissioner Zack had one

         16        on Lottery funds, and he is in agreement with this.

         17        So I would ask your support.  And Commission Nabors is

         18        going to speak to the finer details.

         19             CHAIRMAN DOUGLASS:  Before you do that, we have

         20        four amendments on the table -- three amendments on

         21        the table.  The first amendment is by Commissioner

         22        Corr.  And he has another one, and we will read

         23        Commissioner Corr's first amendment.  Please read it.

         24        He moves this amendment incidentally.

         25             READING CLERK:  By Commissioner Corr, on Page 2,


          1        Lines 1 through 4, delete those lines and insert

          2        lengthy amendment.

          3             CHAIRMAN DOUGLASS:  Commissioner Corr on your

          4        amendment.

          5             COMMISSIONER CORR:  Thank you, Mr. Chairman.  The

          6        current proposal that was worked out -- I'm sorry, I

          7        just want to make sure I'm working off the right

          8        proposal.  Is this the one in the red book or the pink

          9        book or whatever color it is?

         10             CHAIRMAN DOUGLASS:  It's in the pink book and it

         11        is the last one in there.

         12             COMMISSIONER CORR:  Okay.  What this amendment --

         13        what this proposal would do is, speaking to the

         14        proceeds of the Florida Lottery, is to allow those

         15        proceeds to be used to build schools and allow the

         16        proceeds to be used for early childhood education.

         17        That's it.  It would limit it to those two things.  Is

         18        that correct, Mr. Nabors?  I'll put that in the form

         19        of a question.

         20             CHAIRMAN DOUGLASS:  It is not the last one in

         21        there, but it is about fourth from the last.

         22             COMMISSIONER NABORS:  The current proposal, and

         23        basically the substitute which we have agreed upon

         24        which will be taken up, basically allows three uses of

         25        Lottery proceeds.  One is it recognizes the current


          1        use the Legislature decided to finance public schools.

          2             Secondly, it recognized the Legislature's

          3        commitment existing to pre-kindergarten programs to

          4        the tune of about $107 million.  But then it says that

          5        any additional monies would be used to either

          6        establish new programs in early childhood education or

          7        enhance funding levels of those that are in existence.

          8        And so that's the uses that the amendment addresses.

          9             COMMISSIONER CORR:  All right, thank you,

         10        Commissioner Nabors.  So please listen carefully.

         11        What has happened here, the proposal that follows

         12        this, the proposal that I worked out and was passed by

         13        the Committee of Education talks about some of these

         14        proceeds going directly to school advisory councils.

         15        That is what this amendment does.

         16             What this amendment would do is take out the

         17        ability for Lottery proceeds to be used to finance the

         18        building of public schools.  Now, we heard in every

         19        public hearing, everybody that's ever served in an

         20        elected office has heard since 1986 that voters are

         21        upset about the fact that Lottery proceeds have not

         22        been used to enhance education fully.  We could argue

         23        that it has been used to enhance education somewhat

         24        but never probably to the degree to what was promised

         25        when it was originally placed on the ballot in 1986.


          1             Today about $2 million is raised by the Lottery,

          2        at least in 1987.  More than half of that goes to

          3        proceeds -- I mean to prizes.  It also goes to fund

          4        the administration of the Lottery.  What finally

          5        happens is about 36 percent of the proceeds goes to

          6        education.

          7             You can argue that all of the way the money is

          8        being used is good, it is used for scholarships, it is

          9        used to help bond and build schools, it is used to

         10        distribute -- a small percentage actually goes to

         11        school districts.  But the question of whether

         12        enhancement is really taking place, obviously we have

         13        heard that 100 million times, is debatable.

         14             What we will do with this proposal is move in the

         15        right direction of pure enhancement with the early

         16        childhood programs.  I would argue that that is

         17        enhancement of the current education system and we

         18        ought to leave that in place.  But if we put in here

         19        that we are going to build schools with Lottery

         20        proceeds, I think that flies directly in the face of

         21        what the original proposal was all about and it

         22        subjects this to defeat.  What we are going to do is

         23        go right back to the ballot and tell people that

         24        building schools is not the responsibility of the

         25        state already, that building schools is an


          1        enhancement.  Well, that's not true.  Building schools

          2        has got to be the responsibility of the Legislature

          3        with or without the Lottery.

          4             So what this proposal would do is take that out,

          5        it would not allow Lottery proceeds to be used -- to

          6        be bonded to build public schools, but what it would

          7        do is allow Lottery proceeds to go directly to school

          8        advisory councils.  Since the Lottery was passed, the

          9        state passed Blueprint 2000 legislation in 1980, '91,

         10        somewhere thereabouts, and it set up local-based

         11        school advisory councils made up of parents and

         12        teachers that happen at every school around the state

         13        now that recommend to the Commissioner of Education

         14        enhancements to their schools.

         15             The best place to hand this extra money if you

         16        want to really enhance education is right to the

         17        parents of the individual school.  Every school is

         18        different.  Every school has different needs for

         19        enhancement.  Some may need to build new facilities,

         20        some may need to buy computers, some may want to spend

         21        money to buy football helmets, whatever it is, the

         22        enhancement ought to be decided by the teachers and

         23        the parents at the individual school.

         24             So what this proposal would do is allow the money

         25        to be distributed directly to school advisory


          1        councils.  It will bypass the bureaucracy, bypass the

          2        Department of Education and go directly to parents and

          3        teachers in the individual schools themselves.  This

          4        is the right way to enhance the Lottery.

          5             CHAIRMAN DOUGLASS:  Commissioner Barkdull.

          6             COMMISSIONER BARKDULL:  Question of Commissioner

          7        Corr.  Commissioner Corr, where is the definition of

          8        the advisory council found?

          9             COMMISSIONER CORR:  It is found in the original

         10        Blueprint 2000 legislation, so it is found in Florida

         11        Statute.

         12             COMMISSIONER BARKDULL:  It is not in the

         13        Constitution?

         14             COMMISSIONER CORR:  No, sir.

         15             COMMISSIONER BARKDULL:  I don't think this is

         16        appropriate language to do what you want to do.  You

         17        are referring to some body that is not established in

         18        the Constitution, it is only established by the

         19        Legislature and they can turn around and abolish it

         20        tomorrow.

         21             COMMISSIONER CORR:  What this does is allow it to

         22        be used for school advisory councils as defined by the

         23        Legislature's general law.  If the Legislature decides

         24        not to do that, that's fine, they can decide not to do

         25        it today as well.


          1             COMMISSIONER BARKDULL:  I don't understand the

          2        Constitution speaking to a body that is not created.

          3             COMMISSIONER CORR:  Currently in law exist school

          4        advisory councils.

          5             COMMISSIONER BARKDULL:  I don't understand the

          6        Constitution to understand it that you have got to

          7        refer to statutes.

          8             COMMISSIONER CORR:  I'm not sure that matters.

          9        What I think, what this does is allow that money to be

         10        used to be funded directly to school advisory councils

         11        as long as they exist.  The Legislature can -- what

         12        this does is tell the Legislature it can't be used for

         13        any other things other than early childhood

         14        development and the fund -- direct funding to school

         15        advisory councils for enhancement.

         16             CHAIRMAN DOUGLASS:  Commissioner Corr, what you

         17        are trying to do as I understand it is just strike at

         18        the part that allows the use of Lottery funds to issue

         19        bonds or build schools or renovate them?

         20             COMMISSIONER CORR:  That's correct.

         21             CHAIRMAN DOUGLASS:  That's your main goal?

         22             COMMISSIONER CORR:  No, that's not my main goal

         23        at all.  There are two things.  One is to strike that.

         24        The other is to allow Lottery proceeds to be

         25        distributed directly to school advisory councils for


          1        enhancements.

          2             CHAIRMAN DOUGLASS:  All right.  And that was the

          3        question that was posed to you by Commissioner

          4        Barkdull, as to the propriety of doing that is what

          5        you were responding to?

          6             COMMISSIONER CORR:  Yes, sir.  And that passed

          7        the Committee on Education.  And I'm not sure why it

          8        wasn't included in this sort of joint proposal, but it

          9        was something that received favorable vote, and it is

         10        also a proposal that stands on its own that we will

         11        hear later today.

         12             CHAIRMAN DOUGLASS:  All right.  Commissioner

         13        Smith was up next.

         14             COMMISSIONER SMITH:  Thank you.  Commissioner

         15        Corr, I am very, very sympathetic to what you are

         16        trying to do because I too feel that we need to try to

         17        get in the local level with the parents and the

         18        teachers, they know best.  My concern is the

         19        accountability for the money, for these groups who may

         20        or may not have any experience whatsoever in handling

         21        money, especially if you are talking about millions

         22        and millions of dollars.

         23             When you thought about it, I'm sure -- it's

         24        obvious that I thought through this process and you

         25        came up with advisory councils.  We are all concerned


          1        about the accountability of the month to these parents

          2        and teachers who I'm sure have never handled millions

          3        and millions of dollars.  Maybe they had like, you

          4        know, raised a little money to send the football team

          5        off to the state championship, which is what mine did,

          6        so did you consider that and do you have a comfort

          7        level for the people that will be a little concerned

          8        about the money being accounted for.

          9             COMMISSIONER CORR:  Thank you.  Commissioner

         10        Smith, I do have a comfort level for a few reasons.

         11        Number one is the Legislature already directs money

         12        directly to school advisory councils.  They are

         13        already letting school advisory councils make

         14        financial decisions to enhance their own institutions.

         15        The second reason I have comfort with it is because I

         16        trust parents and teachers to do what's right for the

         17        school.  Nothing is more sacred to any of us.

         18             We have heard it many times on this floor, than

         19        the education of our children.  And I think when they

         20        get that money to be used for enhancements they are

         21        going to use it right, they are going to decide what

         22        their school needs on an individual basis and they are

         23        going to use it right.  I have trust in that.

         24             The third reason is probably the weakest, but in

         25        terms of accountability, this is the Lottery and it


          1        was designed for enhancement.  We could take the

          2        proceeds from the Lottery and flush them down the

          3        toilet and we still ought to be funding public schools

          4        to a maximum level in the State of Florida.  So

          5        accountability or not, this is enhancement dollars.

          6             You know, last year there was 821 million after

          7        prizes and administration.  That ought to go to the

          8        teachers and parents and they ought to use it to

          9        enhance their schools.  If some of them waste a little

         10        bit of it, well, it won't be the first time in state

         11        government that money was wasted.  I'll bet it is

         12        going to be wasted less by those individuals right in

         13        their local classrooms.

         14             CHAIRMAN DOUGLASS:  Commissioner Rundle.

         15             COMMISSIONER RUNDLE:  Question, Commissioner

         16        Corr.  I too am very sympathetic to your proposition

         17        and what it is you are trying to accomplish.  My

         18        concern is if you wanted to put your skeptic's hat on,

         19        are you not concerned that the Legislature could

         20        abolish these advisory school councils, advisory

         21        boards rather, and then allow them the control to deal

         22        with these Lottery monies; and how do we prevent that?

         23             COMMISSIONER CORR:  Well, first of all, if this

         24        amendment passed, the Legislature could do away with

         25        school advisory councils but at that point the only


          1        place they could -- the only way they could spend

          2        money is on early childhood programs because it will

          3        say that right in the Constitution.

          4             So, if they do away with school advisory

          5        councils, they can't distribute those lottery proceeds

          6        anywhere else other than early childhood education.

          7        There is no reason for the Legislature to ever do away

          8        with those school advisory councils that provide input

          9        back to them for what's best for their school.  And it

         10        is also -- will be now, under this proposal, the place

         11        that Lottery enhancements end up being spent.

         12             So that's a valid issue.  But they would be

         13        limited in the Constitution from spending the money

         14        anywhere else if they did that, other than early

         15        childhood programs.

         16             CHAIRMAN DOUGLASS:  Commissioner Riley.

         17             COMMISSIONER RILEY:  Mr. Chairman, I have an

         18        amendment to Commissioner Corr's amendment.  And

         19        perhaps if we could TP this issue for a short bit of

         20        time we can work that out and come to a total

         21        agreement.  What I would --

         22             CHAIRMAN DOUGLASS:  Is it on the table?

         23             COMMISSIONER RILEY:  They are preparing it.

         24             CHAIRMAN DOUGLASS:  We have got three others, or

         25        two others.


          1             COMMISSIONER CORR:  Can I inquire what the nature

          2        of the amendment is?

          3             COMMISSIONER RILEY:  What I would like to do is

          4        add back in the financing and refinancing portion and

          5        to leave in the student advisory council section, but

          6        add to that "as defined by general law" which takes

          7        care of Commissioner Barkdull's -- does it not?  Well,

          8        whatever words would take care of that problem.

          9             CHAIRMAN DOUGLASS:  What you are asking to do is

         10        to TP 138 and 89 as we are now on and 118 which is the

         11        subject matter of what he is doing here, and allow you

         12        an opportunity to work on this and bring it back up

         13        today; is that right?

         14             COMMISSIONER RILEY:  In addition, it would be

         15        143, which is Commissioner Sundberg's Lottery fund

         16        proposal which is part of this, and Commissioner

         17        Zack's proposal 54, which also deals with Lottery fund

         18        use, and all of those would be wrapped into this one

         19        proposal.

         20             CHAIRMAN DOUGLASS:  I'll tell you what, we have

         21        had a lot of meetings on this.  If we start taking a

         22        recess every time somebody can't agree on an

         23        amendment, you can vote this one down and offer your

         24        own if you don't like it.  Commissioner Crenshaw?

         25             COMMISSIONER CRENSHAW:  Mr. Chairman, I have an


          1        amendment that if I offer I think will frame the issue

          2        and then we can kind of discuss it, and if it passes,

          3        all this stuff will kind of take a backseat.  I would

          4        propose, and I'd like to offer that amendment right

          5        now as a substitute.

          6             CHAIRMAN DOUGLASS:  Can you wait just a minute?

          7        The Secretary informs me the best way to do this is TP

          8        Commissioner Corr's amendment and move to the next

          9        amendment and then you can file your amendment and put

         10        it on the table and it will come in order.

         11             COMMISSIONER CRENSHAW:  What, Mr. Chairman, what

         12        my amendment does is basically say we are not going to

         13        decide as a commission that we are going to supersede

         14        the Legislature.  I think we have a debate on that and

         15        we decide, if that's not the philosophy, then we can

         16        talk about how you want to spend it.  But if we decide

         17        the philosophy is we are not going to tell them how to

         18        spend it, then we will get rid of this issue.

         19             CHAIRMAN DOUGLASS:  Just offer yours as an

         20        amendment and then we will -- is it on the table?

         21             COMMISSIONER BARKDULL:  It is on the desk.

         22        Everybody has got it.

         23             CHAIRMAN DOUGLASS:  Everybody has got it, all

         24        right.  We are going to TP the Corr amendment and the

         25        other amendments, and at this time we are going to


          1        move to Commissioner Crenshaw's amendment which is on

          2        the table.  Would you read it?

          3             READING CLERK:  By Commissioner Crenshaw, on

          4        Page 1, Lines 27 through 30 and Page 2, Lines 1

          5        through 16, delete and insert lengthy amendment.

          6             CHAIRMAN DOUGLASS:  Commissioner Crenshaw, tell

          7        us what that does.

          8             COMMISSIONER CRENSHAW:  Well, you've got to read

          9        what it inserts and basically it just says this,

         10        Commissioners, it says the net proceeds derived from

         11        the Lottery shall be used to support improvements in

         12        public education and such proceeds shall not be used

         13        as a substitute for existing resources for public

         14        education.

         15             And the reason I offer that, Mr. Chairman, is so

         16        we can decide as a body on whether we want to take the

         17        place of the Legislature and decide how we ought to

         18        spend the money and write that in the Constitution, or

         19        we can simply say, as this amendment proposes, that we

         20        are going to use the money for education.  Because if

         21        you read the Constitution, the amendment that was

         22        passed in 1986 by 86 percent of the people didn't say

         23        the money had to go to education, but everybody felt

         24        like it did, and for the last 12 years every year it

         25        has gone for education.


          1             And so what this simply does is write into the

          2        Constitution -- I have been moved by some of the

          3        people who talk about aspirational language, this is

          4        aspirational language.  It says once and for all, when

          5        somebody says, A, is this enhancing or is this being

          6        substituted, you can all go back and point to the

          7        Constitution and say, It says in the Florida

          8        Constitution that this money goes to education, it

          9        goes to enhance education, and you can't use it to

         10        substitute other monies.

         11             Now, if you believe that you will vote for this

         12        amendment, and, frankly, I don't see how you cannot

         13        vote for that because that's what everybody believes.

         14        And once you do that, then you can later on decide if

         15        you want to tell the Legislature how to spend their

         16        money, that's your business.  And that's what these

         17        proposals do.

         18             And I can tell you from a perspective of history,

         19        over the years there have been raging debates about

         20        how to spend the money.  When the Lottery was first

         21        adopted in 1987 I thought the best thing to do would

         22        be put the money in the bank, wait until the end of

         23        the year and say at the end of the year, Here is some

         24        money we would not have had if we didn't have a

         25        Lottery.


          1             And that first year was $315 million, and then we

          2        could say to the people of Florida, Look, we have a

          3        Lottery, we have got $315 million, let's decide how we

          4        are going to spend it.  And you could all see, maybe

          5        we buy a school bus, maybe we build a new building,

          6        whatever it is, people could see, in my view, a great

          7        public relations tool.  That's the way I think we

          8        should have done it.

          9             But I was a freshman Senator at the time and I

         10        had just chaired the Lottery committee and had spent a

         11        year and a half writing the law, and they said, That

         12        is a good law, but $315 million, we will spend that

         13        the way we want to spend it, and it was spent.  And

         14        that's been the raging debate for the last 12 years.

         15             And every year people say, Are they enhancing

         16        education, are they not enhancing education.  This

         17        says that once you draw it into the Constitution, it

         18        is going to enhance education and it is not going to

         19        be used to substitute existing funds, it is as simple

         20        as that.

         21             CHAIRMAN DOUGLASS:  All right.  So, as I

         22        understand it, you are proposing that to be in the

         23        first part of the amendment that says the net proceeds

         24        are going to be used to enhance education; is that

         25        right?


          1             COMMISSIONER CRENSHAW:  Well, actually what I was

          2        going to do, Mr. Chairman, was offer that as a

          3        substitute and then all of the other amendments would

          4        go away, but -- so right now we are on this amendment.

          5        If we adopt it, that's going to be part of the

          6        Constitution.  You can still proceed with these other

          7        provisions and decide how you want to spend it if

          8        that's the will.  But I think to start with, this

          9        settles that issue once and for all.

         10             CHAIRMAN DOUGLASS:  You are not trying to address

         11        deleting these other items at this point, you are just

         12        making sure that the statement is that it is going to

         13        be used?

         14             COMMISSIONER CRENSHAW:  Now I'm deleting -- if

         15        you adopt this amendment, you will do away with where

         16        you spend the money.  Somebody can come back and amend

         17        that to do that, but my amendment will do away with

         18        where you spend the money and just simply say the

         19        language.

         20             CHAIRMAN DOUGLASS:  You are then moving --

         21             COMMISSIONER CRENSHAW:  It strikes all of the

         22        other language in your 138 book.

         23             CHAIRMAN DOUGLASS:  Okay.  So what's on Page 2

         24        would be struck in your amendment.  And then what you

         25        are saying is you can revisit that if we adopt your


          1        amendment; is that right?

          2             COMMISSIONER CRENSHAW:  That's right.

          3             CHAIRMAN DOUGLASS:  Okay.  Does everybody

          4        understand that?  Commission Jennings.

          5             COMMMISSIONER JENNINGS:  Question of Commissioner

          6        Crenshaw, and it is more to get some dialogue so we

          7        can share this with the body I think.  Commissioner

          8        Crenshaw you know during our special session we just

          9        appropriated a portion of the revenues from the

         10        Lottery to support the bonds for the next 20 years for

         11        school construction.

         12             I think if your amendment would pass, and the

         13        issue should pass on the ballot, we would then have

         14        some problem with our bond collateral.  Since this is

         15        sort of your business, would you explain to me if

         16        there is something we need to be concerned about, or

         17        could we just go find some other revenue source to

         18        collateralize the bonds?

         19             COMMISSIONER CRENSHAW:  As I understand --

         20             COMMISSIONER JENNINGS:  And the only reason I'm

         21        asking that is because there are those who would

         22        define the fact that school construction and the

         23        building of schools is not an enhancement to education

         24        because that is a responsibility -- we had that debate

         25        as well, that is a responsibility of the state and the


          1        local school system to build these schools.

          2             So, just because we are building more schools

          3        isn't an enhancement, that's our original

          4        responsibility.  So I'm concerned that it gets into

          5        the issue of your nomenclature about used a substitute

          6        for existing resources when we should be using

          7        existing money to build schools.

          8             COMMISSIONER CRENSHAW:  I don't think you need to

          9        be concerned about that because actually, I have a

         10        confession to make, the language that's in my

         11        amendment was taken from the statute that is in the

         12        book up there.  So, if you did something bad this year

         13        in violation of the statute, then you have already

         14        done that.

         15             But I don't think that has anything to do with

         16        it.  This is what we have all believed all along, that

         17        the Lottery money went to enhance education.  And

         18        spending it on financing of bonds certainly falls in

         19        that category, it enhances education.  Simple as that,

         20        Senator Jennings, you need not fear.

         21             COMMISSIONER JENNINGS:  Well, Commissioner,

         22        Mr. Chairman and Commissioners, I would not fear if

         23        you tell me not to, but I fear anyway, just because.

         24        I think Commissioner Crenshaw is headed where all of

         25        us were headed, that we want to restore the public's


          1        faith in the Lottery and where it's going.  And

          2        actually that's exactly what the Legislature has tried

          3        to do for the last couple of years.  And since I have

          4        the floor I'll just kind of talk a little bit.

          5             CHAIRMAN DOUGLASS:  You just keep on, you have

          6        the privilege of the floor.

          7             COMMISSIONER JENNINGS:  Well, then you won't have

          8        to listen to me again.  And I'll make a couple of

          9        points because they are probably as cogent to this as

         10        they would be to the argument of the amendment or the

         11        issue as a whole.

         12             What we have got is a situation of money that we

         13        have already obligated out of the Lottery.  We had $75

         14        million to the Bright Futures scholarships that we

         15        have already obligated.  That was a new program this

         16        year, dedicated and replaced with general revenue, I

         17        mean, when we took it from other places, we replaced

         18        it with general revenue, $75 million for Bright

         19        Futures scholarships that just started this year.

         20             We had the money that we have utilized for the

         21        bonding of the additional classroom space for the next

         22        20 years.  We have the pre-K programs that are

         23        currently in existence that were an enhancement.  The

         24        pre-K programs were not here before the Lottery.  We

         25        used Lottery dollars to fund them.


          1             And the issue of readiness is one that I am

          2        extremely committed to doing, as I shared with

          3        Commissioner Nabors, serving on the Governor's

          4        Commission on Education, they are running a

          5        subcommittee which is chaired by David Lawrence of the

          6        Miami Herald who, if you watched the tape, was one of

          7        the presenters about this issue.  And he came to us,

          8        and I am convinced that that's exactly where we change

          9        what's happening with our young people today, and it

         10        is in those early years of stimulation.

         11             The Senate is working on that at the moment.  I

         12        mean, we have a major readiness initiative, but again,

         13        it is going to be a legislative statutory initiative,

         14        not one in the Constitution.  And then, by the way,

         15        when we get ready to dedicate these funding sources

         16        someplace, we have $454 million today that goes to our

         17        public school system, K through 12, our university

         18        system, and our community college system.

         19             So, when we get ready to determine that we are

         20        going to do these other things, I want you-all to

         21        think in terms of the fact that in the year 2000, or

         22        when this goes into effect, it is on the '98 ballot,

         23        that the Legislature will be back here looking for at

         24        least $454 million to put back into education that I

         25        can tell you at this point I have no idea, other than


          1        new taxes, where we go get that money that's currently

          2        there in education right now working in those school

          3        systems every day.

          4             So I am committed to the fact that we need to

          5        continue to make sure these dollars keep going to

          6        education, that they try to enhance the public school

          7        system, that they don't supplant dollars that we

          8        should be putting there.

          9             But, again, I guess I ask that you go back to our

         10        original premise that we started with back in June

         11        when we were here together, is this where we want it?

         12        Is the Constitution where we want to designate exactly

         13        where all of the Lottery dollars go?  And you-all may

         14        agree that it is.  I have some concerns that it is the

         15        place.

         16             And I think I would perhaps appreciate and

         17        support Senator Crenshaw's amendment more than the

         18        original bill just because it gives some latitude.  I

         19        have some concerns about that, so I've given you the

         20        50 cents tour all at one time.

         21             CHAIRMAN DOUGLASS:  And you speak then as a

         22        proponent of Commissioner Crenshaw's amendment?

         23             COMMISSIONER JENNINGS:  Um --

         24             CHAIRMAN DOUGLASS:  Well, I'm asking a question.

         25             COMMISSIONER JENNINGS:  Shall we say,


          1        Mr. Chairman, I think it at least gives us more

          2        latitude as we go forward than the original proposal

          3        will.

          4             CHAIRMAN DOUGLASS:  So can I say you are for it?

          5             COMMISSIONER JENNINGS:  Out of deference, say I

          6        like it better than the original proposal.  How about

          7        that?

          8             CHAIRMAN DOUGLASS:  Well, when you vote we'll

          9        find out.  Commissioner -- the Secretary told me to

         10        leave you alone.  She's got a lot of power with me

         11        too.  Commissioner Thompson.

         12             COMMISSIONER THOMPSON:  I just wanted to ask her

         13        a question or two about it.

         14             CHAIRMAN DOUGLASS:  He doesn't have to leave you

         15        alone.

         16             COMMISSIONER THOMPSON:  I am in the middle of the

         17        same struggle, and I certainly like

         18        Commissioner Crenshaw's idea better than I do anything

         19        that we have seen on the table at this point.  But I

         20        do question, and I think that's what you are saying,

         21        is your question, what does it mean as a substitute

         22        for existing sources.  Does that mean that you take

         23        all of the money that's spent on education right now,

         24        or whenever this is effective, and then you take away

         25        the Lottery dollars that are involved there, and then


          1        whatever comes in next year as Lottery dollars, you

          2        stack it on top of that; is that your understanding?

          3             I mean, what is the understanding?  This doesn't

          4        look too refined to me to go in the Constitution.  I

          5        understand it's somewhat conceptual, but I am a little

          6        worried about putting this in the Constitution when I

          7        don't understand what it means and it sounds like you

          8        don't understand everything that it means.

          9             COMMISSIONER JENNINGS:  Well, Commissioner

         10        Thompson, that's part of my problem too and that's why

         11        I was sort of wanting to get a dialogue with

         12        Commissioner Crenshaw to at least get us thinking

         13        about where we were headed with this.  Because, in

         14        fact, I am not sure what he means.  I know what he

         15        intends to do, and I think that's what we are

         16        intending to do by focusing on the fact that we would

         17        like some language in the Constitution as it deals

         18        with the Lottery and a commitment to education.

         19             CHAIRMAN DOUGLASS:  Commissioner Mills, question.

         20             COMMISSIONER MILLS:  I think this may be a

         21        question for Commissioner Crenshaw.  It seems to me,

         22        from what I understand, what Commissioner Jennings

         23        said, that there is a certain amount of this money

         24        dedicated to the basic funding of the Florida

         25        Educational Finance Program; is that correct?  Is that


          1        true?

          2             CHAIRMAN DOUGLASS:  Commissioner Jennings.

          3             COMMISSIONER JENNINGS:  I'm using our staff

          4        analysis here, and it may not be dedicated to the

          5        FEFP, but it's going into the school districts.  And

          6        232 million is going to the local school districts in

          7        their discretion, they can use it for whatever.

          8             And the same thing, 109 million is going to the

          9        community college system, 88 million to the state

         10        university system, another 23 million for specific

         11        operations of IFAS at USF and at the University of

         12        Florida, and then another 2.5 million for

         13        performance-based incentives at the community college.

         14             COMMISSIONER MILLS:  It seems to me, if I were to

         15        have to interpret this, that all of those things would

         16        have to be replaced.

         17             COMMISSIONER JENNINGS:  Right.

         18             COMMISSIONER MILLS:  And that means, I think,

         19        basically what Commissioner Thompson and Commissioner

         20        Jennings said, that this would create about a

         21        $400 million hole in education funding that would have

         22        to be funded by general revenue because this, as I

         23        read it, would prohibit it being funded by the

         24        Lottery.

         25             Now, having said that, the footnote to this whole


          1        Lottery thing is, having been involved in this

          2        education issue, there is no single issue that's made

          3        the public as angry as the Lottery.  The Lottery and

          4        its expenditure has been equivalent to fraud to the

          5        public.  I was in the Legislature when it passed and I

          6        don't claim innocence, but I think that what has

          7        happened in the area of the Lottery is clearly a major

          8        public irritant.

          9             It is -- the Lottery is in the Constitution.  If

         10        we are going to try to fix it, a couple of comments

         11        from Commissioner Jennings is very relevant.  I mean

         12        the Legislature has obligated itself for 20 years for

         13        school construction.  I think anything that we do that

         14        would impair that would be a problem, in some way.  If

         15        we want to decide how to spend it, that may be a

         16        problem.

         17             But we have to decide, as a matter of policy, if

         18        we are going to try to decide on how to spend it, and

         19        if it's supplemental, it's going to create a hole.

         20        That has to be considered, though, an admission of

         21        guilt that, in fact, the Lottery has not been spent

         22        for supplemental purposes.

         23             And I think over the course of the last eight

         24        years or so, the basic, what everybody understands is

         25        the basic level of funding, that is the Florida


          1        Educational Finance Program, I think, was 4 or 5

          2        million.  The Lottery has gone for basic funding of

          3        schools.  That's why the public is mad.

          4             Now, we can decide here to try to remedy that.

          5        But if we are going to try to do that, I think that

          6        both Commissioners Thompson and Jennings are right, it

          7        is a significant financial issue.  If you say it is as

          8        a matter of constitutional mandate that you can't

          9        spend it, it is -- I mean, we have to treat it

         10        intellectually as a $400 million issue.

         11             CHAIRMAN DOUGLASS:  Commissioner Mills, history

         12        doesn't do any good in these matters, but when this

         13        was argued in the Supreme Court before it went on the

         14        ballot, I had the great privilege of arguing, even

         15        though I voted against the Lottery, for the Lottery

         16        being put on the ballot, as the lawyer for Flamingo or

         17        whoever they were.

         18             And it was stated by me, in oral argument,

         19        exactly what you said, that this amendment does not

         20        guarantee that this money will go into education, what

         21        it guarantees is that we'll get this amount of money

         22        which we want to go into education, but it's up to the

         23        Legislature as to how they appropriate the general

         24        revenue.  The court, in its opinion, said that.  And

         25        it said the ballot language was clear on that.  The


          1        argument against it was the ballot language led you to

          2        the impression that all of it was going into the

          3        Lottery.

          4             And, of course, what happened was exactly what

          5        was predicted in the court opinion; that the

          6        Legislature chose to use the Lottery funds to make up

          7        what would normally have been in general revenue.  And

          8        that was not a partisan matter at all, everybody from

          9        every party in the Legislature joined in that.

         10             So, where we are today, as I understand it, they

         11        are trying to remedy what couldn't be done under the

         12        single subject rule on the initiative, which was to

         13        make it dedicated, the funds, that could not be used

         14        to offset other appropriations.  What you are pointing

         15        out is when we do that, there's a $400 million hole

         16        that's built up over the years which nobody can really

         17        blame anybody for, because it was done pretty much

         18        because they had to do it or raise taxes, which they

         19        couldn't do.

         20             And so consequently, what this group was saying,

         21        let's now dedicate the funds for the Lottery and make

         22        it clear not to use them over here, creating a

         23        $400 million hole in the general revenue.  But they

         24        pointed out on that tape, which Commissioner Jennings

         25        pointed out, that's not quite right, because what they


          1        have dedicated here, a portion of this would take up

          2        some funds that are in general revenue.  So, it's not

          3        the total amount.  Now, am I correct on my explanation

          4        of the tape, Commissioner Jennings?  Did everybody

          5        look at the tape?  You know, it was sent to us.  I'm

          6        sure you did.

          7             Okay.  Now, we are on the amendment.  And,

          8        Commissioner Corr, you and Commissioner Nabors here

          9        are in my line of sight.  Who was up first?  Okay,

         10        Commissioner Nabors.

         11             COMMISSIONER NABORS:  Let me draft the amendment

         12        to Commissioner Crenshaw.  I think we have really got

         13        to listen carefully on this and put in perspective,

         14        and I will take the language that Commissioner Mills

         15        used, that the general public feels like the Lottery

         16        has been a fraud on them because they felt that when

         17        they voted for the Lottery they were enhancing

         18        education in some manner.

         19             I've been involved, as I know Commissioner

         20        Crenshaw has in the last 10 years, in trying to figure

         21        out how to rewrite in the law something to guarantee

         22        what the people thought they voted on they got.  I

         23        think this is a sincere attempt by you to do that.

         24        But let me tell you what the problem with this

         25        language is.  There are two problems with this


          1        language.

          2             One is, if it creates the fraud of the past -- if

          3        it cures the fraud of the past by saying all future

          4        money has to be supplemental funds, then you have a

          5        $400 million hole under this proposal or under the

          6        proposal that is a consensus proposal.  Because you

          7        have $400 million or so that's being used for things

          8        that would not fit the definition of this proposal or

          9        the proposal that is a consensus proposal.

         10             So, you have the fraud of the past, which is

         11        going to create the $400 million hole no matter what

         12        you do.  In addition to that, we have got a debate

         13        that happened last year, whether you agree with it or

         14        not, there was a fair debate in the Legislature

         15        process as to whether or not the financing of public

         16        schools was enhancement or not.  That debate carried

         17        the day.  That was a debate that occurred, and most

         18        people accepted that.

         19             So, the problem is on Commissioner Crenshaw's, I

         20        think, as the ugly word, bond lawyer, you do have a

         21        problem with your bonds that are outstanding by the

         22        fact that you now have a constitutional amendment

         23        which talks to the future.

         24             So, as to the fraud of the past, you may have

         25        created a $600 million hole with Commissioner


          1        Crenshaw's language and a $400 million hole with the

          2        language that consists in the proposal.  That's fraud

          3        of the past.

          4             Fraud of the future is what Commissioner Thompson

          5        is talking about.  What do you mean when you use the

          6        language, supplemental financing of education?  That

          7        is exactly the problem with what people thought was in

          8        there in the beginning, so every dollar, from the time

          9        this was adopted, can be used to do the same thing as

         10        the fraud of the past, continue to be used as

         11        supplemental appropriations to education programs.

         12        You haven't cured the problem.  You don't cure the

         13        problem with this language.

         14             Ten years ago when the Lottery was first adopted,

         15        I worked with some other people, with Commissioner

         16        Caster.  How could we write some language in the

         17        Legislature to make sure that the money goes for

         18        enhancements?  You cannot do that because of the

         19        imprecision in the definition.  Any new dollars after

         20        the day you enact is then these supplemental dollars,

         21        but it's dollars that everybody thinks is really for

         22        growth and other issues.

         23             So, the only way that you could prevent the fraud

         24        of the future, the only way you can prevent it, is to

         25        enumerate in the Constitution how it can be used.


          1        That's the only way you are going to get to the people

          2        and make them understand.  Now, when we get to the

          3        debate on the issue, on the main issue, hopefully, we

          4        can talk about the tape, and those who haven't viewed

          5        it, I hope you have the time to view it before we take

          6        the final vote.

          7             What this amendment intends to do is to recognize

          8        that we have enhanced education to the extent of a

          9        fair debate on the financing of public schools.  Okay,

         10        so we recognize that.  There's no question that the

         11        pre-K kindergarten program is an enhancement in

         12        education.  It wasn't in existence at the time that

         13        the amendment was adopted.

         14             What this simply says is, we need to isolate, we

         15        need to isolate supplemental educational funds out of

         16        the basic educational structure.  And the way to do

         17        that is to dedicate it to programs like early child

         18        care and education, which is what pre-K is.  And what

         19        this amendment does, it says, in the future, in the

         20        future, it asks to be for new programs or for enhanced

         21        funding of existing programs.  There's no question of

         22        any baiting switch, it goes to the enhanced funding of

         23        education.

         24             The question that you want to ask yourself is,

         25        what's meant by early childhood care and education.


          1        That was the purpose of the compelling testimony that

          2        we had at committee and why the tape was sent out by

          3        the consensus group.  And when we get to the full

          4        debate we can talk about that.  That is a term that

          5        has a meaning in the real world, it is not a made-up

          6        term.

          7             So, the difficulty we face with this proposal is,

          8        if we are truly going to prevent a fraud of the past,

          9        we have got to enumerate what we meant by enhanced

         10        education in the Constitution.  I argue all of the

         11        time about, is this a constitutional provision or

         12        statutory.  This is one where we can't avoid the fraud

         13        of the future.

         14             Now, we have a $400 million hole that's going to

         15        be created.  We have talked about that in committee.

         16        That is a legitimate concern Commissioner Jennings

         17        had, Commissioner Marshall had, and others.  We have

         18        that under Mr. Crenshaw's language, the fraud of the

         19        future under the consensus language.

         20             What we talked about at the committee is we have

         21        got to deal with that before the final vote.  We can't

         22        responsibly vote 22 for this proposal until we deal

         23        with that issue.  There's several ways to deal with

         24        it.  One way is, like we have ultimately, like we have

         25        with Article V, we may have to phase it in over a


          1        number of years.  Phase it in over a number of years.

          2             Secondly, I've got a proposal I have talked to

          3        many about, I feel passionately about, which is a

          4        reform of the sales tax, which is to basically lower

          5        the rate, expand the base if it's there in Florida's

          6        future.

          7             We could do that if we -- without constraint on

          8        the Legislature, we could reduce the rate to 5 and

          9        come up with $400 million.  If that gets 22 votes, we

         10        have been responsible for filling up that hole.  But

         11        what would be irresponsible would be to try to deceive

         12        the people one more time by saying we have created a

         13        $400 million hole by eliminating the fraud of the

         14        past, but we have done nothing to prevent the fraud of

         15        the future.

         16             I would urge you strongly to vote against this

         17        amendment, let's debate on the merits, as to whether

         18        or not we need to enumerate this in the Constitution,

         19        we can talk about the tape, about what early childhood

         20        education means and what nexus that has to the

         21        enhancement of education.

         22             CHAIRMAN DOUGLASS:  All right.  Who is next?  We

         23        are on the amendment.  Commissioner Corr, you are

         24        next.

         25             COMMISSIONER CORR:  Thank you, Mr. Chairman.  Let


          1        me find where that little thing went.  Here we go.

          2        Let me read this from the Orlando Sentinel.  If you

          3        will indulge me, it'll only take a second, I read

          4        fast.  The headline in the editorial, Tell Whole

          5        Lottery Story.

          6             Over the last 10 years, the Florida Lottery has

          7        contributed over 8 billion to public education.

          8        Sounds great, right?  Too bad that line, contained in

          9        the latest Florida television radio commercials

         10        continues the same misleading take on the game that

         11        has been repeated for 10 years.  The impression is

         12        that thanks to the lottery, public education in

         13        Florida has received 8 billion it wouldn't have had

         14        otherwise.  It's no wonder that voters around the

         15        state have rejected local tax referendums to give more

         16        money to schools.  That is a sore spot with Orange

         17        County.

         18             If you believe that hype, the Florida Lottery has

         19        been the icing on the cake for school districts, why

         20        give them even more money?  In fact, in the past

         21        decade, the Lottery has ended up being the egg in the

         22        batter, a basic element that schools have needed just

         23        to continue delivering the same services.

         24             That was last week's Orlando Sentinel.  It could

         25        have been any week over the last 10 years.  What this


          1        amendment would do is basically tell the same lie all

          2        over again and put it back on the ballot.  We passed

          3        that lie once in 1986, what this would do -- if you

          4        really want to make people mad, do it to them twice,

          5        this is like the double punch.  It's okay, it sounds

          6        good, but it's like the first one, it sounds good but

          7        it won't make a difference.  So, if you want to make

          8        people mad, do it to them twice.  I'm worried about

          9        that.

         10             What I think Commissioner Nabors said is correct,

         11        the Legislature has had the chance, Commissioner

         12        Jennings told us about it a couple of minutes ago, the

         13        Legislature has had a chance to be responsible, they

         14        have had 12 years now, it hasn't worked, they have had

         15        their chance.

         16             Voters have continued to tell them that it's

         17        important to them, they continue to send them back up

         18        here, they haven't made a difference.  We have to make

         19        this change in the Constitution.  I'm sympathetic to

         20        the potential, quote, hole that's going to be created.

         21        But like Mr. Nabors said, that hole is a result of

         22        fraud on behalf of -- if you want to call it fraud,

         23        though that sounds awfully strong, on behalf of the

         24        Legislature over the last 10 years.  They have used

         25        that money incorrectly.


          1             So, it's going to be an issue, yes, where that

          2        money comes from next is going to be an issue, yes,

          3        and I'm sympathetic, but we have to now reverse the

          4        problems that have been created rather than waiting

          5        even longer.

          6             So, we can vote for this, if we vote in favor of

          7        it, again, what we don't want to do is wipe away the

          8        other amendments because they are the ones that

          9        actually get back to responsibility.  And Commissioner

         10        Crenshaw mentioned, when offering this proposal, that

         11        this would potentially wipe those other amendments

         12        away.  I want to make sure that that's not the case,

         13        this would not wipe any other amendments away if we

         14        were to pass it.

         15             CHAIRMAN DOUGLASS:  Commissioner Morsani.

         16             COMMISSIONER MORSANI:  Fraud, the fraud was

         17        created by the Teachers Union of the State of Florida,

         18        they perpetuated it and they sold it to the people of

         19        this state.  It was never a part of the Legislature.

         20        And they did not commit fraud.  And I don't think that

         21        is a good theme for us to have, that our Legislature

         22        committed fraud on the people of this state, they did

         23        not do that.  And yet nobody wants to tell the public

         24        who really created the fraud.

         25             Now, that is the end of the conversation on that.


          1        I happen to be opposed to the -- to all of it.  So,

          2        that's my vote, is no, because the Legislature should

          3        handle these and should be by statute.  We don't need

          4        any of this in the Constitution, including Mr. Nabors'

          5        proposal, because that's not where we are; let's not

          6        do this.  But I know we are on the amendment, and I'm

          7        opposed to the whole thing.  So, that's my vote.

          8             CHAIRMAN DOUGLASS:  Commissioner Sundberg.

          9             COMMISSIONER SUNDBERG:  On the amendment,

         10        Mr. Chairman.  I speak against this amendment for

         11        several reasons.  The first has already been raised by

         12        Commissioner Thompson.  I don't know what existing

         13        resources are.  I think it is too imprecise for us to

         14        work with.  I don't know if that represents a

         15        percentage, I don't know if it represents real

         16        dollars.  But I have a much more serious objection to

         17        this.  And if I may, if you will bear with me for some

         18        anecdotal information.

         19             And I don't think anybody was a party to a fraud

         20        here.  I think that is a mischaracterization.  I think

         21        what the problem is is that you cannot ask the

         22        Legislature to have the institutional fortitude to

         23        resist using revenues that are available when they get

         24        in the appropriations process.

         25             I will tell you, anecdotally, at a former time in


          1        my life I represented on several occasions a former

          2        Governor in litigation with the Legislature over the

          3        exercise of the veto.  And I had occasion then to look

          4        very, very carefully at the appropriations bill in

          5        each of those years.  I was appalled when I saw what

          6        Lottery revenues were appropriated for.  Would you

          7        believe the state motor pool?  That wasn't even

          8        vaguely resembling an educational purpose.

          9             So, we are not just talking about funds being

         10        used to replace general revenues that were not devoted

         11        to education, we are talking about, in trying to come

         12        together in conference committee and in an

         13        appropriations bill, here is some money, and the

         14        temptation is simply too great.  There's nothing

         15        malicious or venal about that, it is just a fact of

         16        life.

         17             Which brings me to my other anecdotal point.  I

         18        was a member of an institution called the Florida

         19        Supreme Court.  The Florida Supreme Court dealing

         20        with, and I won't get into the complexities of this,

         21        but it had to do with the jurisdiction of that court

         22        to accept certain kinds of cases.  By case law, the

         23        court had ruled that it could accept a certain kind of

         24        case.  There was a majority on the court who believed

         25        that was really wrong.  But I'll guarantee you that,


          1        as an institution, we did not have the institutional

          2        fortitude to change that court-made rule, and we could

          3        have.

          4             So, we, in fact went to the people with a

          5        constitutional amendment in 1980 saying, Change the

          6        Constitution so it expressly prohibits us from taking

          7        these cases.  And that's what I perceive needs doing

          8        now.

          9             No -- and the Commissioner candidly concedes,

         10        it's not by any secret that these moneys were to be

         11        used to enhance, everybody has said that, everybody

         12        understood that it was to be used to enhance

         13        education.  We have not been able to do that.  The

         14        Legislature has been incapable of that, for some

         15        really pretty good reasons.

         16             But that's why I oppose this amendment and

         17        strongly suggest -- we may have to debate what those

         18        purposes of enhancement should be, but I am satisfied

         19        to a moral certainty that we must put those precise

         20        purposes or uses in the Constitution so that the

         21        Legislature will not be tempted to use these revenues

         22        for something other than enhancement.

         23             CHAIRMAN DOUGLASS:  All right.  This is on the

         24        amendment.  And would you like to close on the

         25        amendment, Commissioner Crenshaw?


          1             COMMISSIONER CRENSHAW:  Mr. Chairman, just let me

          2        say a couple of things.  I think Commissioner Sundberg

          3        said it best, and that is, when people passed this

          4        amendment in 1986, all it said was we were going to

          5        have a Lottery and everybody thought the money was

          6        going to go for education and everybody thought the

          7        money was going to go to enhance education.  And it

          8        seems to me that this language is fairly simple and

          9        straightforward.  And it says just that, that you have

         10        got to use it for education, and you have got to use

         11        it to enhance education.

         12             And as a matter of policy, I don't think it is a

         13        good idea to write in the Constitution where money

         14        ought to be spent.  Commissioner Henderson had a

         15        proposal to start with that we just passed to have to

         16        do with continuation of Preservation 2000.  His

         17        original proposal said that you would dedicate

         18        $400 million a year forever to pay for environmentally

         19        dangered lands.  I've always supported the concept of

         20        P2000, and they have issued bonds every year.  And I

         21        think they ought to continue to do that.  But I told

         22        him, I didn't think it was a good idea to write into

         23        the Constitution they are going to set aside

         24        $400 million, and it actually would grow from year to

         25        year, I just thought that was a bad public policy.


          1             And for whatever reason, he decided that maybe it

          2        was not the best public policy.  And I am just trying

          3        to be consistent with this, to say that, if we tell

          4        the Legislature, You have got to spend it on

          5        education, you have got to spend it to enhance

          6        education, I'll let them make that decision.

          7             All of this business about holes and this and

          8        that, I don't know what that means because the

          9        language that we have got here has been in the

         10        statute, I guess.  If the Legislature has been doing

         11        something that's illegal, those of you would argue now

         12        they are going to do something unconstitutional, but I

         13        don't think that's the case.  If they have been

         14        violating the statute, shame on them.  I don't think

         15        they have.

         16             And I think if you simply put this on the

         17        ballot -- if this had been on the ballot in 1986 I

         18        guarantee you it would have passed because that's what

         19        people thought they were voting on.  And that's all

         20        I'm saying is, give them a chance.  If there is some

         21        kind of legal problem with that, I understand that.

         22        But the broader public policy is that I don't think

         23        we, as the Constitution Revision Commission, should

         24        try to decide how to spend state dollars.  So, I would

         25        urge the adoption of the amendment.  Thank you.


          1             CHAIRMAN DOUGLASS:  All right.  Now, we are on

          2        the amendment offered by Commissioner Crenshaw.  And

          3        does everybody remember what the amendment said?

          4        Let's read it again.

          5             READING CLERK:  By Commissioner Crenshaw, on

          6        Page 1, Lines 27 through 30, and Page 2, Lines 1

          7        through 16, delete and insert, The net proceeds

          8        derived from the Lottery shall be used to support

          9        improvements in public education and such proceeds are

         10        not be used as a substitute for existing sources for

         11        public education.

         12             CHAIRMAN DOUGLASS:  All right.  Everybody --

         13        well, let's open the machine and vote on the amendment

         14        which has the effect of making that the proposal.

         15             (Vote taken and recorded electronically.)

         16             CHAIRMAN DOUGLASS:  Lock the machine and announce

         17        the vote.

         18             READING CLERK:  Nine yeas, 16 nays, Mr. Chairman.

         19             CHAIRMAN DOUGLASS:  All right.  The amendment

         20        fails.  Commissioner Jennings, I want you to know that

         21        you and I voted together on that --

         22             COMMISSIONER JENNINGS:  Good.

         23             CHAIRMAN DOUGLASS:  -- after that long discussion

         24        that we had.

         25             COMMISSIONER JENNINGS:  I took note of that.


          1             CHAIRMAN DOUGLASS:  All right.  Now, let's move

          2        to the next amendment.  We revert to the Corr

          3        amendment?  Yes, we revert to the Corr amendment,

          4        which has been previously discussed, but we can have

          5        additional discussion to refresh your memory on what

          6        it does.

          7             Commissioner Corr, if you would close on your

          8        amendment, perhaps we can go ahead and vote on it.

          9             COMMISSIONER CORR:  Thank you, Mr. Chairman.

         10        What I will do then is remind the commission what this

         11        amendment does.  What this amendment does is delete

         12        the language that allows Lottery proceeds to be used

         13        to finance the building of public schools.  The debate

         14        that we have talked about previously is that that, the

         15        responsibility to build public schools is already the

         16        responsibility of the Legislature.

         17             What it does is delete that and add in that, the

         18        proceeds from the Lottery may be used to enhance local

         19        school education programs through distribution to the

         20        local school advisory councils made up of teachers and

         21        parents, the people that can decide best how to

         22        enhance their own local schools.

         23             CHAIRMAN DOUGLASS:  All right.  Are you ready to

         24        vote on the amendment?  Question, Commissioner --

         25        Commissioner Riley.


          1             COMMISSIONER RILEY:  Riley.  Commissioner Corr,

          2        the proposal now then takes out the financing bonding

          3        portion, then what is the amendment that I have on my

          4        desk that doesn't do that but just adds the student

          5        advisory council?

          6             COMMISSIONER CORR:  That is another amendment.

          7             COMMISSIONER RILEY:  It is a backup?

          8             CHAIRMAN DOUGLASS:  That one has not been

          9        offered, has not come forward.

         10             COMMISSIONER RILEY:  Can we debate the amendment?

         11             CHAIRMAN DOUGLASS:  No, we have debated it.  We

         12        just reverted to him for his closing on this

         13        amendment.  We debated it for 15 minutes before we got

         14        to the --

         15             COMMISSIONER RILEY:  So I couldn't speak against

         16        it?

         17             CHAIRMAN DOUGLASS:  Well, obviously, you spoke

         18        against it already I think.  I certainly recorded you

         19        as a no vote.  Commissioner Jennings.

         20             COMMISSIONER JENNINGS:  Mr. Chairman, point of

         21        information to the body, how about that?

         22             CHAIRMAN DOUGLASS:  Absolutely.

         23             COMMISSIONER JENNINGS:  As we are going along and

         24        delineating those areas where we would like our

         25        Lottery funds to go, I thought I would share with you


          1        that, in fact, the Legislature does believe that the

          2        school advisory councils are an integral part of what

          3        we do.  And during the last legislative session we

          4        appropriated $10 per student per school to the SACs,

          5        directly to the SACs for them to utilize as they

          6        deemed appropriate within their own school.

          7             So, the Legislature agrees with the importance of

          8        the SACs and their involvement in the utilization.

          9        And it was actually our long-term goal to take those

         10        dollars that flow to the schools through this

         11        $232 million that flows to the discretion of the

         12        school district and try to get those directly into the

         13        schools.  That was our legislative long-term goal.

         14        Whether that's what we want to do in the Constitution

         15        or not, I just thought I would share that with you, in

         16        fact, that is the direction that the Legislature is

         17        headed.

         18             CHAIRMAN DOUGLASS:  Thank you for your point of

         19        information.  It was a pretty good bit of information.

         20        We'll now vote on the Corr amendment.  Open the

         21        machine.  Everybody hasn't voted, I don't think.

         22             (Vote taken and recorded electronically.)

         23             CHAIRMAN DOUGLASS:  Lock the machine and announce

         24        the vote.

         25             READING CLERK:  Three yeas and 20 nays,


          1        Mr. Chairman.

          2             CHAIRMAN DOUGLASS:  The next amendment, you can

          3        read it, please, if you can figure out which one it

          4        is.  Commissioner Nabors moves this amendment.

          5             READING CLERK:  By Commissioner Nabors, on

          6        Page 1, Line 27, through Page 2, Line 16, delete those

          7        lines and insert lengthy amendment.

          8             CHAIRMAN DOUGLASS:  Is that on our desk?  Did

          9        everybody have this Nabors' amendment?

         10             COMMISSIONER NABORS:  It was on the desk

         11        yesterday.

         12             CHAIRMAN DOUGLASS:  All right.  Tell us,

         13        Mr. Nabors, Commissioner Nabors, what that does and

         14        then we can see if we can find it on our desk.

         15             COMMISSIONER NABORS:  Mr. Chairman, this is

         16        the -- yeah, this is the consensus amendment that was

         17        sent out to every member.

         18             CHAIRMAN DOUGLASS:  I don't want you to debate

         19        this, I want you to tell us what it says so we can see

         20        if we have got it and then you can debate it.  So, go

         21        ahead and tell us what it is.

         22             COMMISSIONER NABORS:  This is a consensus

         23        amendment that was sent out to each member.  It makes

         24        two changes to the language that is in the packet.

         25        You should have had it on your desk yesterday.  The


          1        first change is, it adds as a permitted use, the

          2        provision of pre-kindergarten programs.  In the

          3        education committee, there was a debate that the

          4        original bill that I filed didn't recognize that the

          5        existing funding of $107 million on pre-kindergarten

          6        was an enhancement, so it adds that.

          7             The only other thing is that it changes the

          8        introductory language as to the fact that, just to

          9        change the style of the language to make sure that

         10        it's clear that the appropriation of Lottery funds is

         11        used to be enhanced solely for the following purpose.

         12        It is a stylistic change.

         13             The change that is a substantive change is the

         14        fact that it adds to the enumerated uses a Subsection

         15        2 provision of pre-kindergarten programs.

         16             CHAIRMAN DOUGLASS:  All right.  Does everybody

         17        understand?  Commissioner Barnett you are recognized.

         18             COMMISSIONER BARNETT:  Commissioner Nabors,

         19        please explain to me in a --

         20             CHAIRMAN DOUGLASS:  I'm not sure your mike is on.

         21             COMMISSIONER BARNETT:  Please give me an example

         22        of the difference of what's intended in Paragraph 3

         23        and Paragraph 4, just a practical example.

         24             COMMISSIONER NABORS:  Paragraph 3 is to recognize

         25        that you may have appropriations for early childhood


          1        care programs that aren't in existence on the day that

          2        this amendment was adopted.  So, you might have a new

          3        program.  An example, there might be a new program

          4        dealing with disabilities, programs to determine

          5        disabilities at an early age.  It's not existing in

          6        the current legislative scheme.

          7             Four is enhanced funding while an existing

          8        program.  For example, it permits the enhanced funding

          9        of a pre-K program, subsidized day care, and there are

         10        other types of programs that are in existence.  The

         11        reason for the language is to make sure that once we

         12        go along permitted uses, that any new use is any new

         13        program for an enhanced funding level of an existing

         14        program.

         15             CHAIRMAN DOUGLASS:  Does that answer your

         16        question?

         17             COMMISSIONER BARNETT:  I think so.  I just don't

         18        fully understand why you need to make that

         19        distinction.  Maybe I am the only one that doesn't,

         20        but try again.  I mean, I like the idea, I just don't

         21        know why you have to make that distinction.  It seems

         22        if you are looking for a document, that would be --

         23             COMMISSIONER NABORS:  Well, the concern would be

         24        if we are trying to make sure it's enhanced, for

         25        example, the concern is the future Legislature might


          1        take Lottery funds and just fund the existing

          2        subsidized day care programs just like they did on

          3        basic education.

          4             So, the problem is we want to make sure that the

          5        money is used to enhance an existing program funding

          6        level or to new programs, so they would not be used

          7        within the arena of preschool or in the arena of

          8        childhood care and education programs, we wouldn't

          9        have the same problem we have had in the past with

         10        basic education.

         11             CHAIRMAN DOUGLASS:  Commissioner Mills, question.

         12        Do you yield to him?

         13             COMMISSIONER MILLS:  Commissioner Nabors.

         14             COMMISSIONER NABORS:  Yes.

         15             COMMISSIONER MILLS:  Is it clear -- I think it's

         16        clear that anything that would relate to scholarships

         17        would not be -- would therefore be unconstitutional?

         18             COMMISSIONER NABORS:  We do not have -- no, I

         19        didn't -- it cannot be funded from Lottery proceeds,

         20        it would have to be funded from general revenues,

         21        correct.

         22             COMMISSIONER MILLS:  And there were several kinds

         23        of expenditures I think in higher education, those

         24        would be unconstitutional as well?

         25             COMMISSIONER NABORS:  Any expenditure


          1        unconstitutional as funded from Lottery proceeds.

          2             COMMISSIONER MILLS:  Right, right.  And then the

          3        one in which I agree with as a matter of principle.  I

          4        mean, the basic educational finance program, that it

          5        would be unconstitutional to expend Lottery funds on

          6        the basic educational finance program?

          7             COMMISSIONER NABORS:  You are correct.

          8             CHAIRMAN DOUGLASS:  And, as I understand, I think

          9        through Commissioner Jennings, that's about

         10        $232 million this year.  Given this has no -- given

         11        the effective date of this as written would be next

         12        January, if it passed, the Legislature, next spring,

         13        would have to deal with that issue.

         14             A question I have -- because I think there are a

         15        lot of people probably, as a matter of principle, are

         16        interested in trying to get this towards a true

         17        enhancement, because I think a lot of people thought

         18        that that was the purpose when it was passed.  Would

         19        you consider deferring the date of implementation in

         20        some way so that, as Commissioner Jennings has said,

         21        it would give the Legislature a period of time to

         22        adjust to that as a concept?

         23             COMMISSIONER NABORS:  Yes.  We talked about that.

         24        Yes, I would.  Let me explain that, if I could.  We

         25        have talked about that at the Education Committee.


          1        One of the difficulties with our process is, is that

          2        we deal with things as they come along, and often we

          3        have to reconcile all of them as a package group.  One

          4        of the things that's coming along in the process is a

          5        proposal that I've talked to many of you about, which

          6        I feel passionately about, and that is a mechanism to

          7        deal with the sales tax base, to remove those

          8        exemptions that don't advance a public purpose and to

          9        reduce the rate from 6 to 5.

         10             It is my view, it may not be a prevailing view,

         11        that that process would generate enough dollars to do

         12        this within an early time frame.  If, for some reason

         13        that doesn't get the majority vote, then I think we

         14        will have to look at this over a phased period of

         15        time.  It doesn't matter to me whether we do it now

         16        and then try to reconcile it later.  But my view is we

         17        would wait and see at the end of the day, as we

         18        schedule these things, what other mechanisms we have

         19        to do to fund this, obviously, deficiency of the

         20        general fund.

         21             It's my view, and I have talked to Commissioner

         22        Jennings is, is if my tax fairness initiative doesn't

         23        pass, I'll represent to her, it's acknowledged to

         24        everybody that's involved in this that there has to be

         25        some schedule of funds.


          1             CHAIRMAN DOUGLASS:  Does that answer your

          2        question?

          3             COMMISSIONER MILLS:  Yes.

          4             CHAIRMAN DOUGLASS:  Commissioner Scott.

          5             COMMISSIONER SCOTT:  Just briefly, Commissioners,

          6        this, to put something like this in the Constitution

          7        and pick out pre-K and any particular thing, not that

          8        they are not all worthwhile, is just a very bad idea.

          9             I mean, when you think back, I mean nobody ever

         10        heard of the Internet, what if we had written

         11        something in there that said we couldn't spend state

         12        money on something that might have prohibited that?

         13        There are so many changes, I just think that the basic

         14        premise here of representative government, and I for

         15        one, I never have bought this idea.

         16             What happened to the Lottery was when it went

         17        into effect, the Governor had campaigned against it

         18        and ever since then they have been saying it was some

         19        sort of a misrepresentation or fraud or whatever, and

         20        that's not true.  But aside from that, Lottery or no,

         21        you shouldn't write in here that proceeds from any

         22        source of revenue can only be spent for itemized

         23        things within a general area like education because

         24        you don't know what contingencies might come up.

         25             And I would urge you, I just think that this, I


          1        know the goal is good, but I just think that it is a

          2        bad idea to start writing -- itemizing four things and

          3        pre-K and early childhood education and things like

          4        that in the Constitution.

          5             We already have in there and we have tried to

          6        reaffirm, I think, that adequate provision for

          7        education will be made.  But beyond that I think we

          8        need to keep in mind on some of these things, I mean

          9        like the U.S. Constitution, I mean you just don't, you

         10        have to leave some of this that if you don't like what

         11        the people are doing, then elect somebody else, you

         12        know, into the Legislature.

         13             But I would urge you to really, seriously

         14        consider putting this kinds of financial restraints on

         15        what we do with the state revenues.

         16             CHAIRMAN DOUGLASS:  Commissioner Morsani.

         17             COMMISSIONER MORSANI:  I am not opposed to

         18        motherhood and the flag.  I think they're wonderful.

         19        And I --

         20             CHAIRMAN DOUGLASS:  We were all worried about

         21        that.

         22             COMMISSIONER MORSANI:  I know.  And I'm sorry I

         23        get upset about subjects, but you do know where I

         24        stand on subjects anyway.  But let's, again, and with

         25        my dear friend Commissioner Nabors, I have tremendous


          1        respect for everyone, I have great respect for

          2        Commissioner Nabors and others, of course, all the

          3        others in this room.

          4             But I ask that we review history a little bit in

          5        light of these kinds of proposals.  In 1950, now

          6        remember, I ask you to look at history.  In 1950, the

          7        United States created 55 percent of the world's gross

          8        national product.  We thought that we were pretty

          9        good.  We had just come through the great war, and the

         10        rest of the world was devastated, and we thought that

         11        we could do no wrong as public policy-makers.

         12             So our public policy-makers started, and we

         13        started to enhance, I use that word, I hate that word,

         14        we started to tax people, and then -- and we had the

         15        great society under Mr. Johnson.  I never will forget,

         16        ladies and gentlemen, I happen to have dealt early on

         17        in the early '70s with Mr. Wilbur Mills and with

         18        Mister -- with Senator Humphreys.

         19             I never will forget when I told Mr. Humphreys in

         20        1972 when they were starting to increase the Social

         21        Security taxes, I said, Senator, with all due respect,

         22        within 10 years the population at large in our nation

         23        will be spending more money in Social Security taxes

         24        than they are paying in in their federal income taxes.

         25             I was wrong.  I apologized to him later, it only


          1        took five years.  And when we attempt to do this, when

          2        we attempt to delineate what we expect to have the

          3        money spent for, and as Commissioner Scott said, like

          4        computers, what if computers or the Net, if we had put

          5        those in the Constitution 20 years ago or when the

          6        first one, 30 years ago, of course in 1968 -- this is

          7        not good policy.

          8             Yes, we may have some problems periodically in

          9        our Legislature, not adequately using some of the

         10        funds that we think they should use them for.  I'm

         11        afraid, all of you -- all of us probably watched the

         12        President's State of the Union message last night.  I

         13        happen to think big government is back.  If you don't

         14        think it is, just keep an eye on it.

         15             If those weren't more government programs than we

         16        have seen in the last 10 years, then you are wrong.

         17        Because they are.  And they are going to spend the

         18        money for the very things that we would delineate --

         19        that are delineated here, at least they are going to

         20        be attempted to anyway.  I hope they are not.

         21             But I encourage you, as much as I -- and I'm not

         22        against motherhood and the flag, I'm not against

         23        educating our children, but I am opposed to the

         24        impediments that we would put on the legislative

         25        bodies with this kind of proposal to put this in our


          1        Constitution.  I urge you to vote against this

          2        proposal.

          3             CHAIRMAN DOUGLASS:  All right.  We have an

          4        amendment to the amendment that is offered by

          5        Commissioner Corr which we will -- he has moved it, an

          6        amendment to this amendment and it is on the table.

          7        And it will be read.

          8             READING CLERK:  Amendment to amendment by

          9        Commissioner Corr, on Page 1, Line 30, insert for

         10        distribution directly to school advisory councils by

         11        the Legislature and as prescribed by general law for

         12        the sole purpose of enhancing school programs.

         13             CHAIRMAN DOUGLASS:  Commissioner Corr, on the

         14        amendment to the amendment.

         15             COMMISSIONER BARKDULL:  Point of order.  This is

         16        a repetitive amendment.

         17             CHAIRMAN DOUGLASS:  I have already looked at that

         18        and it is not --

         19             COMMISSIONER CORR:  It is not anywhere close to

         20        the other amendment.

         21             COMMISSIONER BARKDULL:  It is in a different

         22        section, but it is the same language.

         23             CHAIRMAN DOUGLASS:  No, we have looked at it and

         24        the Secretary has concluded and I agree with her that

         25        it is not the same, although the argument is going to


          1        be the same.  Commissioner Corr.

          2             COMMISSIONER CORR:  Well, the argument is

          3        somewhat the same.  The other amendment that failed

          4        had a challenge with it, and that was that it was

          5        removing the language that is currently on Line 18 and

          6        No. 1, that would allow Lottery proceeds to be used to

          7        build schools.

          8             This proposal doesn't do that anymore.  All this

          9        proposal does is add another No. 5 and allows Lottery

         10        proceeds to be used to go directly to school advisory

         11        councils where teachers and parents can decide best

         12        how to enhance all their own schools.

         13             In addition, it would allow all the other four

         14        things to happen too, you can still build schools, you

         15        can use the money for pre-K programs, early childhood

         16        care and education.  And in addition to that, Lottery

         17        proceeds can be used to go directly to K through 12

         18        schools to be spent by parents and teachers to enhance

         19        their own school programs.

         20             CHAIRMAN DOUGLASS:  All right.  Everybody

         21        understand the amendment?  All in favor say aye.

         22        Opposed?

         23             (Verbal vote taken.)

         24             CHAIRMAN DOUGLASS:  The nos have it, it fails.

         25        Move on back to the original amendment.  Commissioner


          1        Riley.

          2             COMMISSIONER RILEY:  Mr. Chairman, can we get a

          3        specific vote on this?

          4             CHAIRMAN DOUGLASS:  I don't think you want one,

          5        we will be here all day.  It was the same argument we

          6        defeated 20 to 3.  It doesn't really change except

          7        where he put it and how he structured it, that's why

          8        the point of order was not well taken because he put

          9        in a separate section.  But he is talking about

         10        appropriating funds to the school advisory councils.

         11        And we went through that and that was part of it.

         12             COMMISSIONER RILEY:  We didn't.

         13             CHAIRMAN DOUGLASS:  We are going to move back to

         14        the amendment.  We are going to get on with this

         15        debate.  Yes, sir.

         16             COMMISSIONER CORR:  I'll settle for the voice

         17        vote, but I need to correct your statement.  It is not

         18        the same argument as before, and if people voted for

         19        it with that misunderstanding, then we didn't have a

         20        real vote.  The previous --

         21             CHAIRMAN DOUGLASS:  Let's open the machine and

         22        vote.  And you can read the amendment.

         23             COMMISSIONER CORR:  Is there some

         24        misunderstanding?  Is there a misunderstanding on what

         25        we are doing?  Okay.


          1             CHAIRMAN DOUGLASS:  I don't think so.  We can

          2        read it and then we will vote.  Everybody listen.

          3        We'll let everybody make up their minds as to what

          4        this does and whether or not it is in the same

          5        category as the other one, it doesn't matter.  Just

          6        listen to this amendment and then vote yes or no on

          7        it.  We are going to open the machine.  But read the

          8        amendment.

          9             READING CLERK:  Amendment to amendment by

         10        Commissioner Corr.  On Page 1, Line 30, insert, For

         11        distribution directly to school advisory councils out

         12        of Legislature and as prescribed by general law for

         13        the sole purpose of enhancing school programs.

         14             CHAIRMAN DOUGLASS:  No?  We are going to vote.

         15        She asked for a recorded vote, and we will have it.

         16        Open the machine and vote.

         17             (Vote taken and recorded electronically.)

         18             CHAIRMAN DOUGLASS:  Lock the machine and announce

         19        the vote.

         20             READING CLERK:  Twelve yeas, 12 nays,

         21        Mr. Chairman.

         22             CHAIRMAN DOUGLASS:  It fails.  Now let's move to

         23        the amendment.  We were debating the amendment, and I

         24        believe, Commissioner Riley, you wanted the floor on

         25        the amendment; is that correct?  That's the Nabors'


          1        amendment that we are debating.

          2             COMMISSIONER RILEY:  Yes, yes, and to clarify in

          3        case anyone is not sure, it basically says that the

          4        funds can be used to enhance education, and then it

          5        gives four specific areas that can be used to enhance

          6        education.  And I would like to encourage your vote.

          7             I have listened to everything, I respect what

          8        Commissioner Crenshaw was trying to do.  I don't think

          9        he did, or that amendment did what we all want to do.

         10        I don't want to tell the Legislature where to spend

         11        their money.  We have taken one of these proposals

         12        that had about 15 very specific percentages of how

         13        these dollars can be spent, but it is real clear that

         14        the dollars have not been spent to enhance education.

         15             The original proposal that I had said Lottery

         16        funds can be used to enhance education.  The problem

         17        with some of the proposals originally was that what is

         18        enhancement today is not going to be enhancement, 10,

         19        15, 20 years from now.  Computers were enhancements

         20        when lotteries first went in and they are not an

         21        enhancement today, they are necessary in the

         22        classrooms today.

         23             I don't want to tie the hands of the Legislature,

         24        and I think what we have done with this proposal is

         25        said, If you need it to finance, such as they did with


          1        the construction, it is available for that.  If you

          2        listen to what the experts are saying about the

          3        importance of early childhood education and care, this

          4        allows those programs.

          5             If you think it is really important, and I'm

          6        sorry that Commissioner Corr's didn't pass, because it

          7        would have allowed some local dollars to go to the

          8        student advisory council, but what this says is that

          9        the programs that you are doing now, the additional

         10        programs such as pre-K, are still important.  You can

         11        still do that.  But if you want to make it better,

         12        start at the beginning.  And that's what this proposal

         13        does.

         14             It doesn't say percentages.  It doesn't tie up

         15        with numbers.  It says, Here is where you need to

         16        spend your dollars.  And if you need to refinance, you

         17        can do that.  I would hope that with this direction

         18        that the people who spoke to us all around the state

         19        that said, You are not doing what they said they were

         20        going to do.  Now I'm in sales, I know sales.  The

         21        word "enhancement" was used, not because it is in the

         22        Constitution, but because that was a good selling

         23        point.  And it sold it.

         24             So let's make that real.  And I suggest that we

         25        support this proposal and make the Legislature


          1        enhance.  That's all we are trying to do.

          2             CHAIRMAN DOUGLASS:  Commissioner, you are not

          3        ready to close because you still have some debate.

          4        Commissioner Sundberg.

          5             COMMISSIONER SUNDBERG:  Very briefly.  For all

          6        the reasons I opposed Commissioner Crenshaw's

          7        amendment, I support this amendment and I urge each of

          8        you to do likewise.

          9             CHAIRMAN DOUGLASS:  All right.  Does anybody else

         10        want to speak pro or con on the amendment?

         11        Commissioner Jennings.  This amendment, or do you want

         12        to wait and speak --

         13             COMMMISSIONER JENNINGS:  Thank you, but I don't

         14        want to wear out my welcome.  Why don't I wait and

         15        speak out on the issue when we get to the final vote?

         16             CHAIRMAN DOUGLASS:  You are very welcome.

         17        Commissioner Corr, you want to speak in opposition?

         18             COMMISSIONER CORR:  Yes, of the sponsor.  Which

         19        one is it, Commissioner Nabors?

         20             CHAIRMAN DOUGLASS:  Commissioner Nabors.

         21             COMMISSIONER CORR:  I'm not sure about the way

         22        the language reads.  I could read this two ways.  The

         23        first one is that if this passes there will be two

         24        ways we can spend Lottery money.  Number one is to

         25        finance or refinance bonds to build schools, and the


          1        second one is for pre-K or early childhood programs.

          2        Two ways, only.  Is that correct?

          3             COMMISSIONER NABORS:  Yes.

          4             COMMISSIONER CORR:  Okay.

          5             COMMISSIONER NABORS:  Well, scratch that.  Let me

          6        answer it this way, what it says is you could continue

          7        funding the existing pre-K program or any additional

          8        use of the money beyond bonds and existing pre-K would

          9        have -- could be used for new programs or early

         10        childhood and education or by enhanced funding of

         11        existing programs of early childhood education.

         12             COMMISSIONER CORR:  Okay.  So, just to clarify

         13        it, what you have here is a proposal that only allows

         14        the Lottery money to be spent two ways.  Firstly, to

         15        build and construct schools.  And secondly, for early

         16        pre-K childhood programs.

         17             If this amendment passes, no money can be spent

         18        in the classroom, K through 12, ever again from the

         19        Lottery because you just killed my proposal.  So if

         20        you do this, just do it realizing that all you are

         21        going to be able to spend Lottery money for is pre-K

         22        programs and for the construction of schools.

         23             CHAIRMAN DOUGLASS:  Commissioner Nabors to close.

         24             COMMISSIONER NABORS:  Let me address a couple of

         25        things.  First, to kind of equip myself, fraud was


          1        Mr. Mills' language not mine, I just thought it was a

          2        good idea, but I didn't bring the word "fraud" up.

          3        But specifically, Commissioner Scott, on your issue,

          4        and I would say that this is, that we are different,

          5        as we heard in the very beginning, that we are

          6        different than the Federal Constitution in the sense

          7        that one of the appropriate things in the State

          8        Constitution is to place limitations on the

          9        Legislature.  We are not a grant of power, one of the

         10        things we do is place limitations on the power of the

         11        Legislature.

         12             And it is my view, listening to the people,

         13        following this issue for 10 years, this is a classic

         14        example of necessary-based limitations on the

         15        Legislature in the use of Lottery monies.

         16             Any other, any other solution to it is going to

         17        basically muddle the issue as to whether or not there

         18        is an increase in funding because of its use for basic

         19        education.  You can never find the ball in the

         20        appropriation process.

         21             The other thing I would say, Commissioner Corr,

         22        the other thing I would say to you is that it doesn't

         23        mean that the Legislature would lose its ability to

         24        funnel this money through the local school advisory

         25        boards, it would just have to be for these types of


          1        programs, which many are totally integrated within the

          2        school system.

          3             One of the reasons why it is important to have

          4        this in a more generalized way is because we need to

          5        encourage, and the Legislature would encourage the

          6        formation of partnerships on a regional basis.

          7             One of the things that I want everybody to

          8        understand on this proposal is, is that you should

          9        have heard the testimony.  It was very compelling

         10        testimony about the needs for early childhood care and

         11        education.  That's why we took the time and expense of

         12        sending you a tape.  I urge all of you, hopefully

         13        before the final vote, to look at that tape.

         14             We had as, just to give you -- we had as

         15        testimony, we had David Lawrence as a publisher of the

         16        Miami Herald who is a hard-nosed newspaper person,

         17        hard-nosed, who testified that when he was appointed

         18        to the Readiness Committee, that intuitively he had no

         19        understanding of the importance of these programs.

         20        But he has become a passionate advocate of early

         21        childhood care and education.

         22             We had Chancellor Reed, and you know, the

         23        chancellor of the university system, whose commitment

         24        is to education at the university level who testified

         25        that money spent in early childhood education on


          1        readiness programs is the most valuable way that money

          2        can be spent in terms of enhancing education at the

          3        university level.

          4             And we had Dr. Blackman, who is a nationally

          5        known physician, testify on the issue of how important

          6        and what we know now about the early development of

          7        infant brain cells and how these programs are critical

          8        for their ability to succeed in life.  And we also had

          9        an advocate businessman, Ted Granger, who's head of

         10        the Florida United Way talk about the difficulty in

         11        the appropriation process because of the temptation of

         12        advocating for programs of early childhood care and

         13        education.  They are always the last programs to be

         14        funded, and they are absolutely essential for the

         15        future success of so many of our children.

         16             And, Commission Morsani, this isn't apple pie and

         17        the flag, these are real world serious problems that I

         18        would ask you before, and hopefully before the final

         19        vote on this, we all are busy, to look at that tape

         20        and where it explains and you get an understanding

         21        more clearly of what's meant by the term "early

         22        childhood care and education."  We are talking about

         23        children that have disabilities and the things that

         24        need to be done that aren't being done now to make

         25        these children so they can succeed in school.


          1             And not only will this serve the purpose, serve

          2        the purpose of enhancing education consistent with

          3        what the people want to have done, it also is a

          4        dedicated funding source for these essential programs

          5        that never compete.  There is no galvanized lobby for

          6        these programs.  There is no Associated Industries,

          7        there is no Florida Association of Counties.

          8             These are programs with serious needs that nobody

          9        lobbies in a galvanized way and in the appropriations

         10        process they are lost.  So we get a win-win situation.

         11        We arm the people's understanding of enhancement by

         12        taking it out of general education.  At the same time

         13        we have a dedicated source to deal with these

         14        fundamental, essential programs of how our children

         15        will be able to learn in the future.

         16             The chancellor of the university system says this

         17        is the best place to spend money.  He is not saying

         18        buy computers for the university, he is saying spend

         19        it where the kids are ready to learn.  I recognize

         20        that we cannot do something ultimately, when the day

         21        is done, when the day is done, to create this kind of

         22        funding problem, we are going to have to phase this in

         23        over a period of years.  I have talked to Commissioner

         24        Jennings and we all have an understanding of that, but

         25        that's to be decided later.  We see what we have on


          1        the table at the end of the day.

          2             We may -- I may be able to persuade this body

          3        that my idea of fundamental tax reform is proper.  If

          4        that's done, we may not need to phase it as long as if

          5        we did it today.  So what I would urge you to do, this

          6        is too important an issue to lose today.  All of you

          7        need to carry this along, look at the tape, debate it,

          8        talk about it in the ultimate day if you feel like it

          9        doesn't have merit, it is an improper limitation of

         10        the Legislature, vote against it, but let's keep it

         11        alive.

         12             One of the difficulties in our process is, and

         13        this is not a fault of anybody, is these kinds of

         14        issues are hard to debate.  They are hard to get

         15        public testimony on.  We had the Education Committee,

         16        it was one of the most compelling testimonies I have

         17        ever seen in the public arena and I have been around a

         18        long time.  All men testifying for early childhood

         19        care and education.  Very compelling testimony.

         20        People from all walks of life.

         21             If we are going to go through a public hearing

         22        process, we are going to hear from people.  And maybe

         23        when the day is done we will decide to vote against

         24        this, but this isn't the day to vote against it.  We

         25        need to keep it alive so everybody has got time to


          1        watch the tape and see what we saw at the Education

          2        Committee so a reasoned judgment can be made.  I urge

          3        your vote on this.  It is one of the most serious

          4        issues we are going to vote on as our deliberations

          5        occur.

          6             CHAIRMAN DOUGLASS:  Now, that was closing on the

          7        amendment which turned out to be closing on the

          8        proposal.  Would you read the amendment which is on

          9        the floor?

         10             READING CLERK:  By Commissioner Nabors on Page 1,

         11        Line 27, through Page 2, Line 16, delete and insert

         12        lengthy amendment.

         13             CHAIRMAN DOUGLASS:  Everybody understand the

         14        amendment?  It added pre-K; is that what it did, as

         15        one of the items that it could be used for?  All

         16        right.  All in favor of the amendment, this is not for

         17        vote on the proposal, all in favor of the amendment

         18        say aye.  Opposed?

         19             (Verbal vote taken.)

         20             CHAIRMAN DOUGLASS:  The amendment is adopted.

         21        Now with that amendment, the proposal has been closed

         22        on by -- beg your pardon, that last was certainly a

         23        close on the proposal.

         24             (Inaudible.)

         25             CHAIRMAN DOUGLASS:  All right.  Would you get up


          1        and tell us -- does anybody want to debate the

          2        amendment; I mean, the actual proposal, proposal?

          3        Very well.  Then that's -- who wants to go first, you

          4        or --

          5             COMMISSIONER SCOTT:  Let me go first.  I'll be

          6        quick.

          7             CHAIRMAN DOUGLASS:  Commissioner Scott.  This is

          8        on the proposal.

          9             COMMISSIONER SCOTT:  I'm not going to repeat all

         10        of this, but I want to emphasize one point which

         11        Commissioner Morsani made.  Let's assume that the

         12        federal government comes out with programs that put

         13        more than ample money in this list of early childhood

         14        and pre-K and whatever.  If we put this in the

         15        Constitution, then we are still going to have to take

         16        all of the available Lottery money and spend it on top

         17        of whatever they might spend.  That's just one example

         18        of what's wrong with putting this type of thing in the

         19        Constitution.  So I'm -- I would urge you not to adopt

         20        this and put it in the Constitution.

         21             CHAIRMAN DOUGLASS:  Now Commissioner Jennings.

         22             COMMMISSIONER JENNINGS:  Thank you, Mr. Chairman.

         23        Commissioners, as I said, I don't want to wear out my

         24        welcome.  And I know we are a little suspect.

         25        Commissioner Scott and I standing here saying, sharing


          1        some of these thoughts with you because we are

          2        currently in the Legislature and we have been dealing

          3        with this.

          4             And in all honesty, I need to share with you that

          5        my first year as President, and through Jim Scott's

          6        years as President, and Andrew Crenshaw's years as

          7        president, we did more, we put more money into

          8        education each year than had happened the year before.

          9        We were committed to making sure that we tried to

         10        convince the people that in fact we were keeping faith

         11        with the Lottery, that we were doing other things with

         12        the Lottery instead of just supplanting those dollars

         13        that were being used.

         14             And when we talk about the fraud that was

         15        perpetrated on the public, the worst part of that was

         16        just the general misunderstanding, the general public

         17        things that the Lottery should run all of education.

         18        They think it was the answer to everything, that it

         19        should have been lots of new money and that everything

         20        would just be peachy keen and rosy.  In fact, the

         21        Lottery wouldn't even keep our schools open for 10

         22        days, total.  So that's the problem that we have got

         23        out there, is the perception.

         24             And the Legislature has tried diligently to

         25        restore that confidence, because of course we have


          1        lost confidence -- the people have lost confidence in

          2        us thinking we have taken it someplace else.  And I

          3        won't belabor the point as to where that money went,

          4        it went to the Medicaid match that, for year after

          5        year, starting with Speaker Mills and Speaker

          6        Thompson, I mean year after year we had to come up

          7        with those dollars to match those federal funds for

          8        our Medicaid match, that's where a lot of our

          9        education dollars went, and I will share that with

         10        you.  We are trying to get them back now, and there

         11        will be more dollars with the tobacco settlement.  But

         12        that's all for the Legislature to deal with.

         13             My greater concern, and it is a concern that I

         14        have some trepidation in sharing with you only because

         15        I am so committed and this Senate that you are sitting

         16        in right here is so committed to doing more for

         17        education.  That's where Bright Futures came from last

         18        year.  That's where the pre-K programs came from that

         19        are currently in existence.

         20             The major initiative this year is on readiness

         21        for early childhood education.  I mean, that is one of

         22        our major initiatives that we have within our

         23        proposals that we are working for with the House right

         24        this minute.

         25             My concern is that when we put it in the


          1        Constitution, we realize we have already made a hole

          2        here, a $454 million hole right this minute.  Now,

          3        Commissioner Nabors has said that he understands that,

          4        and maybe we will give the Legislature a little bit of

          5        time to work themselves out of that hole, well that's

          6        good, that's better than this showing up next January

          7        of 1999 and the Legislature saying, Whoa, you know, we

          8        are going to have to find this money and perhaps the

          9        money for Article V.  And Commissioner Nabors is right

         10        in saying perhaps he needs to couple this with his tax

         11        increase proposals, because, in fact, that's exactly

         12        what you are asking us to do.

         13             We don't have 454 extra million dollars floating

         14        around.  I suggested from Commissioner Rundle that I

         15        would start with the State Attorney's budget.  It is

         16        just not there.  So, in fact, I want to share with you

         17        that we need to think in terms of making some kind of

         18        commitment to a revenue source if we are going to do

         19        this or to tie it to a phase-in that the Legislature

         20        can deal with without just saying to the voters, We

         21        are asking you for a tax increase because, in fact,

         22        that won't pass, we know that if we put it out there

         23        that way.

         24             So today I am going to vote against this proposal

         25        with heavy heart, because in fact, everything in here


          1        is where the Legislature has been going and where,

          2        under Senator Scott and Senator Crenshaw and hopefully

          3        under myself, we have been trying to take the

          4        Legislature to restore that credibility.

          5             Commissioner Corr had it right.  Those dollars

          6        should be going down to the student advisory councils,

          7        that's why we pledged those dollars to them.  But is

          8        the Constitution the place that we want to make that

          9        decision?  You may share that, yes, we do.  I guess at

         10        this point there are some of us that have been too

         11        involved in this process for too long that see the

         12        ghosts that will sit on our shoulders as we vote for

         13        this knowing full well where we are down the road.

         14             And I share that with you, as I said, as one

         15        committed to making a difference in education in this

         16        state, one committed to starting with those early

         17        childhood years, because that's how we are going to

         18        have achievement, high academic achievement in our

         19        state, and it is the only way.  But I cannot vote for

         20        this proposal today.  Thank you.

         21             CHAIRMAN DOUGLASS:  Commissioner Barton and then

         22        Commissioner Barnett.

         23             COMMISSIONER BARTON:  This is an unlikely

         24        position for me, but I am going to be voting for this

         25        proposal today because I want the dialogue to


          1        continue.  I am a student of Dr. Blackman's, I serve

          2        on a number of advisory boards that relate to juvenile

          3        justice and children and families.

          4             And I would say to you that I believe that if we

          5        invested in this early childhood area, that we would

          6        have some unintended consequences and those would be

          7        cutbacks in funding that we need to make now in those

          8        areas of juvenile justice and children and families.

          9             We have neglected to do the prevention work in

         10        this state for decades, the prevention work that would

         11        save us the hard dollars and the bad dollars we spend

         12        at the other end of the spectrum.  We need to start

         13        now.  And I am voting for this because I,

         14        philosophically, need to do that.  Thank you.

         15             CHAIRMAN DOUGLASS:  Now Commissioner Barnett.

         16             COMMISSIONER BARNETT:  Just for a point of

         17        information, Mr. Chair.  I just want to let you-all

         18        know, I know where there is a great source of new

         19        revenue, and actually this debate underlines some of

         20        the points I was trying to make yesterday.  So just

         21        wanted to add that as information in case you-all had

         22        forgotten.

         23             CHAIRMAN DOUGLASS:  Incidentally, we all loved

         24        your picture in all of the papers today.  Same vote on

         25        this one as you did the last one, huh?


          1             COMMISSIONER SMITH:  I'd like to know whether the

          2        Commissioner feels strongly enough to tie that

          3        proposal to any other proposal that she feels

          4        heartfelt about and bundle them?

          5             (Laughter.)

          6             CHAIRMAN DOUGLASS:  I don't believe we better

          7        touch that one, Commissioner Smith.  All right.  You

          8        are not -- are you ready to close again?

          9             COMMISSIONER NABORS:  Is there anyone else?  I'm

         10        not going to do the same close, I wanted to talk

         11        briefly to respond to Commissioner Jennings a little

         12        bit.

         13             Everybody knows the issue.  What I'm trying to

         14        say is, Look at the tape, let's keep this issue alive.

         15        This isn't your final vote on this issue, and this is

         16        important enough to keep alive.  If I was sure -- if I

         17        was sure that we would always have a Senate President

         18        like Commissioner Jennings and Commissioner Scott, we

         19        wouldn't need this.  They have a commitment to

         20        education.  We wouldn't need that.

         21             That's why, I guess, well I don't know, but also

         22        Commissioner Crenshaw.  But the point is is that the

         23        purpose of a Constitution is to step in and put

         24        limitations on legislative power where necessary in

         25        every other situation where, because of pressures


          1        unrelated to the goodwill of the people in leadership,

          2        they haven't been able to fulfill what the

          3        understanding of the people was in the use of Lottery

          4        money.  And that's just a fact, and it is not going to

          5        change over time.

          6             There are pressures in terms of the appropriation

          7        process that interfere with that even though the

          8        intentions are good.  So we need to limit their

          9        ability in this regard, otherwise the people are going

         10        to continue to be, whatever the reason of their

         11        misunderstanding is real and it is there.

         12             I agree that if, you know, down the line that we

         13        have to phase this in if my proposal I feel passionate

         14        about on sales tax doesn't pass, it is not a tax

         15        increase.  If everybody pays their fair share,

         16        everybody pays the same.  We will debate that in

         17        February.  It is not a tax increase, it is the next

         18        best thing to what has been proposed in terms of

         19        income tax.  But that's a debate for later on.

         20             We need to keep this debate alive.  This is not

         21        anything against the current leadership of the Senate

         22        or the House, but the point is this is a classic

         23        example of how we need to limit the power of the

         24        Legislature.  And I ask you, look at the tape, come to

         25        your own judgment, and we will debate this again when


          1        it takes the 22 votes.  Thank you.

          2             CHAIRMAN DOUGLASS:  All right.  We will vote on

          3        the proposal as amended.  Open the machine and take

          4        the vote.

          5             (Vote taken and recorded electronically.)

          6             CHAIRMAN DOUGLASS:  Lock the machine and announce

          7        the vote.

          8             READING CLERK:  Fifteen yeas, 9 nays,

          9        Mr. Chairman.

         10             CHAIRMAN DOUGLASS:  By your vote you have passed

         11        the amended proposal and we will now suggest to the

         12        rules chairman that we break for lunch, returning at

         13        1:00 p.m.

         14             COMMISSIONER BARKDULL:  A little longer,

         15        Mr. Chairman, 1:15.

         16             CHAIRMAN DOUGLASS:  Are you recommending 1:15?

         17             COMMISSIONER BARKDULL:  Yes, sir.

         18             CHAIRMAN DOUGLASS:  All right.  Without

         19        objection, we will take lunch and return at 1:15.  Try

         20        to be right on time so we can get started.  And if we

         21        can finish this calendar we will leave when we finish

         22        it.  Commissioner Morsani.

         23             COMMISSIONER MORSANI:  The Sovereign Immunity

         24        meeting.

         25             CHAIRMAN DOUGLASS:   The Sovereign Immunity


          1        meeting, I had forgotten that, pardon me, is that --

          2        it is an organizational meeting, isn't it?

          3             COMMISSIONER CONNOR:  Yes, sir.

          4             CHAIRMAN DOUGLASS:  It is organizational, so it

          5        won't take very long I don't believe.  We will be able

          6        to come back at 1:15.

          7             COMMISSIONER MORSANI:  Is it still Room 309?

          8             CHAIRMAN DOUGLASS:  Yes, it is.

          9             COMMISSIONER MORSANI:  Thank you.

         10             CHAIRMAN DOUGLASS:  We will stand adjourned until

         11        1:15.

         12             (Lunch recess had at 12:00 p.m.  Return from

         13        lunch recess at 1:15 p.m.)

         14             SECRETARY BLANTON:  All commissioners indicate

         15        your presence.  All authorized visitors leave the

         16        chambers.  All commissioners indicate your presence.

         17             CHAIRMAN DOUGLASS:  Come to order.  We have a

         18        bare minimum quorum.

         19             SECRETARY BLANTON:  Quorum present, Mr. Chairman.

         20             CHAIRMAN DOUGLASS:  All right.  We'll proceed on

         21        the special order.  Commissioner Corr, Proposal 118 is

         22        the next proposal.  Everybody take their seats,

         23        please.  (Pause.)  Could everybody take their seats,

         24        please?  Thank you.

         25             Incidentally, before we broke at lunch there was


          1        a group that was in the gallery who was here from the

          2        Ukraine.  And over the lunch period, our Secretary

          3        spoke with them and they are not here now so I can't

          4        recognize them, but she said they were just absolutely

          5        astounded that they could walk into this building and

          6        walk in and sit and watch a group like this, that they

          7        didn't believe people did that.  And I didn't ask her

          8        why, it might have been a group like this might have

          9        meant more than we thought.

         10             I think what they meant was the democratic

         11        process working in this country was just amazing to

         12        them.  One of the people had come to Florida for the

         13        purpose of going to Shands Hospital for treatment.  So

         14        we forget a lot of times how attractive our state is

         15        all over the world and we have medical facilities that

         16        are unparalleled in a lot of places, but we also

         17        forget the freedom we enjoy and we need to be reminded

         18        from time to time that we do have it.

         19             And speaking of that, Commission Corr, you are

         20        free to offer Proposal 118.  And if you would read

         21        118.  Commissioner Corr, we're going to read your

         22        Proposal 118.

         23             READING CLERK:  Proposal 118, a proposal to

         24        revise Article X, Section 15, Florida Constitution;

         25        providing that lotteries may be operated by the state


          1        for the sole purpose of raising proceeds to enhance

          2        funding for public education programs; providing that

          3        proceeds be appropriated directly to school advisory

          4        councils for the sole purpose of enhancing school

          5        programs.

          6             CHAIRMAN DOUGLASS:  All right.  Commissioner

          7        Corr, you are recognized.

          8             COMMISSIONER CORR:  Thank you, Mr. Chairman.  I'm

          9        going to yield to Mr. Alfonso.

         10             CHAIRMAN DOUGLASS:  Commissioner Alfonso.

         11             COMMISSIONER CORR:  Sorry, Commissioner Alfonso.

         12             CHAIRMAN DOUGLASS:  Commissioner Alfonso, you

         13        have the floor.

         14             COMMISSIONER ALFONSO:  I would like to move that

         15        we reconsider committee substitute for Proposals No.

         16        138 and 89 based on -- and just reconsider it on the

         17        next calendar next meeting.

         18             CHAIRMAN DOUGLASS:  It's on reconsideration and

         19        will carry over until the next meeting.  We won't have

         20        another meeting tomorrow, so it will be the first day

         21        when we come back.  You could wait and make that even

         22        at that meeting if you chose, 138 and 89, the one we

         23        just passed.

         24             COMMISSIONER ALFONSO:  Okay.  That is the one we

         25        just passed.  The reasoning for that is we have some


          1        language that we are trying to work out with

          2        Commissioner Nabors, and just to try to get that a

          3        little bit more --

          4             CHAIRMAN DOUGLASS:  All right.  It will be left

          5        pending on reconsideration for the next meeting.

          6             COMMISSIONER ALFONSO:  Thank you, Mr. Chairman.

          7             CHAIRMAN DOUGLASS:  Commissioner Corr.

          8             COMMISSIONER CORR:  Mr. Chairman, I'd like to

          9        withdraw this Proposal 118.

         10             CHAIRMAN DOUGLASS:  All right.  Without

         11        objection, Proposal No. 118 is withdrawn from further

         12        consideration.  Proposal 123 -- 43 by Commissioner

         13        Sundberg.  Would you read it, please?

         14             READING CLERK:  Proposal 143, a proposal to

         15        revise Article X, Section 15, Florida Constitution;

         16        establishing the Education Enhancement Trust Fund for

         17        the deposit of proceeds from the lotteries operated by

         18        the state; requiring the State Board of Education, or

         19        its successor, to appropriate moneys from the trust

         20        fund; providing allowable uses of moneys from the

         21        trust fund.

         22             COMMISSIONER SUNDBERG:  Mr. Chairman, I'd like to

         23        withdraw, in view of the action we took on the other

         24        Lottery proposal, I would withdraw this proposal.

         25             CHAIRMAN DOUGLASS:  Without objection, Proposal


          1        143 is withdrawn from further consideration.  Proposal

          2        54 by Commissioner Zack.  He had to leave to go to

          3        Nashville.  Commissioner Barkdull.

          4             COMMISSIONER BARKDULL:  On his behalf.

          5             CHAIRMAN DOUGLASS:  He wanted to withdraw this,

          6        as I understood it?

          7             COMMISSIONER BARKDULL:  Correct.

          8             CHAIRMAN DOUGLASS:  So, without objection,

          9        Commissioner Barkdull on Proposal 54 is withdrawn.

         10        Proposal 169 by Commissioner Hawkes.

         11             COMMISSIONER BARKDULL:  Mr. Chairman, for the

         12        benefit of the Commission, that now appears in your

         13        yellow book, Proposal 169.

         14             CHAIRMAN DOUGLASS:  All right. Would you read it,

         15        please?

         16             READING CLERK:  Proposal 169, a proposal to

         17        revise Article V, Sections 1 and 4, the Florida

         18        Constitution; establishing courts of criminal appeals;

         19        providing for a court of appeals to be located in each

         20        of three regional divisions; providing for justices of

         21        the courts of criminal appeals to be appointed by the

         22        Governor and be subject to confirmation by the Senate;

         23        providing for compensation of the justices; providing

         24        for terms of office; providing for the courts to have

         25        final appellate jurisdiction of criminal appeals,


          1        appeals of capital cases, and appeals based on habeas

          2        corpus or other post-conviction claims; providing for

          3        the courts to convene an en banc panel to hear capital

          4        cases and to resolve conflicting rulings; authorizing

          5        the courts to issue specified writs; providing for the

          6        appointment of clerks for the courts; providing

          7        applicability of rules.

          8             CHAIRMAN DOUGLASS:  All right.  This was referred

          9        to the Judicial Committee and it was disapproved by

         10        the committee, and consideration referred back to

         11        Judicial, and it was to be reported by February 9.

         12        But it's now on the calendar and was reported out

         13        disapproved by the committee.  Is there anyone on the

         14        committee that wants to address this proposal?

         15        Commissioner Hawkes hasn't returned to the chamber.

         16        Commissioner Barkdull?

         17             COMMISSIONER BARKDULL:  I am not a proponent, but

         18        if there are proponents, I want to be an opponent.

         19             CHAIRMAN DOUGLASS:  Are there any proponents?

         20        Commissioner Barnett.

         21             COMMISSIONER BARNETT:  Well, I don't know if I am

         22        or not, and I'd like some debate on it.  I just came

         23        from a lunch, for example, that we had in our office.

         24        We regularly have somebody in, you know, about once

         25        every couple of weeks just to try to keep us current


          1        as lawyers with what's going on, and this was a member

          2        of the appellate First DCA and they talked about -- we

          3        asked them about good points and bad points about

          4        being an appellate judge, and one of the things this

          5        judge mentioned was the enormous burden now on the

          6        appellate courts from criminal cases.

          7             And I don't practice in that arena, and I don't

          8        have a lot of personal knowledge about it, but just

          9        having heard that not 30 minutes ago, I would really

         10        like to hear some debate and discussion on this.  So

         11        maybe we should wait for the proponent of it.

         12             CHAIRMAN DOUGLASS:  Well, I want you to know, you

         13        have in the chamber a person who served on the

         14        appellate courts longer than any other person in

         15        Florida who probably disagrees with the idea that they

         16        are overworked.  Commissioner Barkdull.

         17             COMMISSIONER BARNETT:  Judge Barkdull's memories

         18        and reflections and opinions will carry great weight

         19        with Lawyer Barnett, but nevertheless, my only point

         20        is I think this issue should be debated and I hope we

         21        can do that.  And without Commissioner Hawkes here, I

         22        would rather move on to something else though, that

         23        perhaps we could engage in the debate when he comes

         24        back.

         25             CHAIRMAN DOUGLASS:  You know, you present


          1        something that causes us a problem.  If people are

          2        present in the building or at the meeting and then

          3        they are not here when we start and we're three down

          4        the list, how much deference do we give to people when

          5        they haven't asked to be excused or otherwise?  A lot

          6        of people leave the chamber and are not here, and a

          7        lot of people have left.  And it seems to me that

          8        somewhere we have to draw a line, which we tried to do

          9        and didn't understand how bad people wanted to debate

         10        that.  I don't want to preclude debate, Commissioner

         11        Barnett, but are you moving to temporarily pass this?

         12             COMMISSIONER BARNETT:  I'm trying to give

         13        deference to the proposal, Mr. Chairman, as opposed to

         14        the individual.

         15             CHAIRMAN DOUGLASS:  We'll have a motion to give

         16        deference.

         17             COMMISSIONER BARNETT:  I'll be glad to make a

         18        motion to temporarily pass it just because I would

         19        like to hear the debate on this.

         20             CHAIRMAN DOUGLASS:  Assuming there is nobody here

         21        to debate it other than Commissioner Barkdull, who I

         22        think could probably be illuminating on this, there's

         23        been a motion that we temporarily pass it.  All in

         24        favor say aye.  Opposed?

         25             (Verbal vote taken.)


          1             CHAIRMAN DOUGLASS:  I think it takes a

          2        two-thirds' vote, we've decided that.  It takes a

          3        vote.  I'm going to rule that it's temporarily passed.

          4        Based on the voice vote I think it passed.  Anybody

          5        who wants to challenge it we'll open the machine and

          6        let everybody vote on it.

          7             Okay.  On the very next one, we have the same

          8        problem that's on the proposal here on the death

          9        sentence, and Commissioner Butterworth, who had to be

         10        absent, wanted to be present on this and asked me to

         11        report that to the body.  And I didn't report it to

         12        the Rules Committee, but under the same circumstances

         13        we just did it, he was excused until -- he is supposed

         14        to be back some time this afternoon but that doesn't

         15        mean he's going to make it.  I would entertain a

         16        motion to temporarily pass it pending return to the

         17        chamber of others that are involved.  I think

         18        Commissioner Zack wanted to be heard on this too.

         19             COMMISSIONER RUNDLE:  Mr. Chairman.

         20             CHAIRMAN DOUGLASS:  Commissioner Rundle.

         21             COMMISSIONER RUNDLE:  Yes, Mr. Chairman, in

         22        deference to Commissioner Butterworth who I know does

         23        wants to address this issue, I would ask that this be

         24        temporarily passed until he's available to be here.

         25        That could be this afternoon.  I'm not sure how


          1        Commissioner Brochin feels about that.

          2             COMMISSIONER BROCHIN:  I agree if somebody has

          3        made a request that wants to be present and heard, we

          4        ought to wait for him to be present.  I would only

          5        note those requests are forthcoming, it would be

          6        helpful if we knew about it a little bit farther in

          7        advance just for preparation purposes.

          8             CHAIRMAN DOUGLASS:  We understood that

          9        Commissioner Butterworth was going to be back and he

         10        was out involved in a matter he couldn't get out of as

         11        Attorney General and he isn't back.

         12             COMMISSIONER BROCHIN:  I mean, I know there are

         13        others like Commissioner Kogan and Commissioner

         14        Wetherington who also want to be heard on this matter

         15        as well.  I don't object to us having full debate --

         16             CHAIRMAN DOUGLASS:  All in favor of temporarily

         17        passing this say aye.  Opposed?

         18             (Verbal vote taken.)

         19             CHAIRMAN DOUGLASS:  Temporarily passed.  Now

         20        Proposal 144 by Commissioner Barnett, who is present.

         21        And if you would read it, please?

         22             READING CLERK:  Proposal 144, a proposal to

         23        revise Article I, Section 17, Florida Constitution

         24        relating to punishment for crime.

         25             COMMISSIONER BARNETT:  If I had known this was


          1        going to advance my moment in the sunshine so rapidly,

          2        I might not have spoken to try and give Mr. Hawkes an

          3        opportunity.  So, you never know, you get what you

          4        wish for sometimes.  I'd ask you to look at Proposal

          5        144 in your books, it's the last item in your yellow

          6        package.  Because I want to read -- I want to read the

          7        language to you.

          8             This proposal is an amendment to Section 17 of

          9        Article I which deals with punishments, the question

         10        of punishments, and it says, No punishment may be

         11        imposed or inflicted in an arbitrary, capricious or

         12        discriminatory manner.  It's a very simple statement.

         13        It's a very narrow proposal.

         14             It only applies to punishment.  It does not

         15        address the underlying criminal activity in any way,

         16        nor the procedures set forth related to the underlying

         17        criminal activity, but only to the question of

         18        punishments.

         19             It is broad, however, in its application.  It

         20        will apply to all crimes, all situations where someone

         21        is involved in a criminal activity and it's

         22        appropriate to impose a punishment for that activity.

         23        And that does include the death penalty.  But this is

         24        not a death penalty proposal, per se.  It is not

         25        intended to, in any way, do away with the death


          1        penalty.

          2             So it's been linked with Commissioner Brochin's

          3        proposal I think because both of them impact the death

          4        penalty, but I think it's important to distinguish

          5        this a little bit, it applies across the board to all

          6        criminal activities and it is not an effort to stop or

          7        otherwise impede the appropriate imposition of the

          8        death penalty, and I think it's important to make that

          9        distinction just because I think that some people

         10        thought that that was the main thrust.  It really --

         11        it is a broad application although the language is

         12        very narrow and applies only to the punishment phase.

         13             Now the concept of not having a punishment

         14        imposed in an arbitrary, capricious or discriminatory

         15        matter, some people would say, Isn't that what the law

         16        already is, isn't that what the law of our state

         17        already is?  And I say, Yes, that's what the law is

         18        supposed to be, that's the way it's supposed to be

         19        administered, but unfortunately that's not the way it

         20        is actually administered.  Through probably no fault

         21        of anyone's, no deliberate fault of anyone's, it is

         22        certainly a hope and a desire that any punishment be

         23        administered in a way that's not arbitrary, capricious

         24        or discriminatory.

         25             It's an aspirational statement.  I think that


          1        reflects what most Floridians believe, and that

          2        punishments should be fair and equitable and impose

          3        equitability across the board, depending on the

          4        particular crime.  It really is an aspirational

          5        statement that reflects what the law is and what it's

          6        supposed to be, and I think it is an appropriate place

          7        to have this in our Constitution, to have our

          8        Constitution reflect that these are our values as

          9        citizens of Florida.  You say, Then if it's what the

         10        law is supposed to be, tell me why it's not being

         11        administered in that way.

         12             Well, I've looked at some studies.  I've looked

         13        at a number of studies that have tried to address this

         14        question.  And we go back to, and I'll just cite you a

         15        couple, and if you'll bear with me, I'll just give you

         16        some quotes from a couple of them.  One of them in the

         17        Florida Supreme Court having a Racial and Ethnic Bias

         18        Study Commission issued its report in 1991.

         19             Some of the findings, one of the findings, the

         20        report, these are quotes from the report.  It

         21        documents practices and policies existing in or

         22        impacting upon Florida's judicial system which are

         23        resulting in the unequal administration of justice for

         24        racial and ethnic minorities in Florida.

         25             Another study, the Joint Legislative Management


          1        Committee of the Legislature did an empirical

          2        examination of the application of Florida's habitual

          3        offender statute.  Here are some findings from that.

          4        This is in August of 1992.  Black offenders are more

          5        likely to be sentenced as habitual offenders than

          6        white offenders.  Even after taking into consideration

          7        differences in criminal history and current offenses,

          8        this result is more pronounced in some circuits than

          9        others.

         10             And here I want to pause and compliment

         11        Commissioner Rundle and Commissioner Ford-Coates

         12        because Sarasota County and Dade County are two areas

         13        where those statistics don't prove to be true.  So,

         14        there are some counties who have gotten this right and

         15        have learned how to do this, and compliments to them,

         16        but that's two of our circuits.  These are findings by

         17        the Joint Legislative Management Committee.  Another

         18        quote, At all offense seriousness levels, at all

         19        offense serious levels, blacks are more likely than

         20        nonblacks to be habitualized.

         21             Another study, and this one now dealing with the

         22        death penalty.  The others were across the board in

         23        punishment questions.  This one is a study dealing

         24        with the death penalty, and it is a Florida Law Review

         25        article entitled, Choosing Those Who Will Die, Race


          1        and Death Penalty in Florida.  Among defendants who

          2        kill whites, strong race differences are apparent.

          3        Black defendants are over twice as likely as white

          4        defendants by a percentage of 12.6 percent to

          5        4.5 percent, respectfully, to be sentenced to death.

          6             A black defendant suspected of killing a white

          7        victim is 15 times more likely to be sentenced to

          8        death than a black defendant suspected of killing a

          9        black victim, convicted of killing.  I used the wrong

         10        word, suspected.  Those are dramatic statistics in

         11        this state.  Those are dramatic statistics.

         12             Again, this is a quote:  One of the strongest

         13        predictors of a death sentence is the victim's race.

         14        This is a simple finding of this study I just referred

         15        to, and when you control for every other factor, every

         16        other factor, the odds of a death sentence are 3.4

         17        times higher for defendants who are suspected of

         18        killing whites than defendants suspected of killing

         19        blacks.  These are compelling statistics to me that,

         20        despite what our law ought to be, today it's not

         21        necessarily being administered in a nondiscriminatory,

         22        noncapricious, nonarbitrary manner.

         23             Now I doubt there is one person in this room, in

         24        fact I'm sure there is not one person in this room

         25        that would stand up and say, Well, I think the law


          1        ought to be discriminatory, I think it ought to be

          2        arbitrary, I think it ought to be capricious.  I can't

          3        imagine that.

          4             And so I ask you, if that's the way you feel, and

          5        we're talking about our justice system and people's

          6        faith in our justice system, let's put that

          7        aspirational goal in our Constitution that says this

          8        is what we as Floridians want to have.  And I think

          9        what it does, does this have impact?  Yes, it will

         10        have impact.  It will be something judges can use when

         11        they are imposing these sentences.

         12             It probably will impact prosecutors as they come

         13        up with their proposals, but it will have impact.  But

         14        I don't think it's going to destroy the system, I

         15        think it's going to enhance it.  Now some raised at

         16        the committee meeting, why don't our existing

         17        constitutional protections cover this?  Why don't the

         18        provisions we have in Article II deal with equal

         19        protections, or Article IX dealing with due process,

         20        or Article XVI that deal with the rights of the

         21        accused, why don't they cover this?  And I say to you

         22        that that deals more with the process, you know, the

         23        process of bringing people to trial for crimes.

         24             This deals with the punishment phase.  This is

         25        something unique to the punishment phase.  It doesn't


          1        affect those others.  It is something in addition and

          2        only applies to the punishment phase.  And if in fact

          3        those other provisions were comprehensive enough and

          4        worked, I wouldn't be bringing this forward because

          5        the equal protection and the due process and those

          6        other clauses would have kept us from being in a

          7        situation where, from all apparent statistics, despite

          8        the best interest and the best efforts of many, today

          9        our laws are not yet meeting the standard we all hope

         10        they will.

         11             So I ask you to join me in putting in the

         12        Constitution what I think is a very simple, just

         13        statement of what we all want to have happen when

         14        punishments are imposed for various crimes.

         15             CHAIRMAN DOUGLASS:  All right.  Any amendments?

         16        All right.  Who wants to be heard on this?

         17        Commissioner Rundle.

         18             COMMISSIONER RUNDLE:  I'd like to start with a

         19        question to Commissioner Barnett.  If I could also

         20        make a statement at the same time.  You know, let

         21        there be no question that I couldn't agree more with

         22        you and I do believe that sentences should not be

         23        imposed in a capricious, arbitrary or discriminatory

         24        manner.  And I don't believe anybody in this chamber

         25        would say that they should be.


          1             I disagree with you on your statement of law.  I

          2        do believe that is the law today.  And I do believe

          3        that the courts have explicitly and implicitly used

          4        that very language when they have actually reviewed

          5        the Florida habitual offender act in King v. State,

          6        when they looked at the death penalty phases.  They

          7        have looked at those discriminatory practices that you

          8        have mentioned, and I abhor those.

          9             I don't think anybody, any single person in this

         10        room with any sense of dignity could not say that the

         11        way in which people who should get the death penalty

         12        and do not get it, that's what those studies show.  It

         13        doesn't show that in those particular cases, that it

         14        has been applied in a discriminatory, arbitrary and

         15        capricious way.  What those studies show is other

         16        people who should have gotten the death penalty did

         17        not get it.  And my question to you, really, pertains

         18        to when you say "aspirational statement."  I don't

         19        know what that means.  And I'm trying to get from you

         20        what your intent behind this is.

         21             Is your intent to create a new standard to be

         22        applied that will be in our Constitution which would

         23        then open the door for a re-litigation of all past

         24        cases, existing cases?  Is it your intent that this

         25        would work prospectively?  Is this a statement, when


          1        you say aspirational statement, is it a statement of

          2        the policy for us as the courts have said, no

          3        sentencing shall be applied in a capricious, arbitrary

          4        and discriminatory way.  What exactly is your intent?

          5             COMMISSIONER BARNETT:  I want to assure you there

          6        is no hidden agenda here.  It is not my intent to

          7        reopen litigation, to give an opportunity to retry

          8        cases or to revisit the sentencing phase.  I don't

          9        know if that will or will not happen, but that is not

         10        my intent.

         11             I believe this is what the law is.  I'm sorry I

         12        misspoke.  I believe that this is the law and this is

         13        the way it is supposed to be imposed.  But today I

         14        think there are instances, and I think everyone

         15        acknowledges, where it does not -- it just isn't

         16        happening.  I believe putting it as a constitutional

         17        standard raises it maybe to a higher level and will, I

         18        hope, go a long way towards meeting the aspirational

         19        goal of having our sentences imposed in a

         20        nondiscriminatory, nonarbitrary, non-capricious

         21        manner.

         22             I think having it as a constitutional standard

         23        may help judges, may help the process, may give them

         24        additional reasons to review evidence regarding

         25        discrimination.  I'm not exactly sure, but it's really


          1        not a hidden agenda, it is simply to take what I

          2        believe is the law, what I believe everyone wants the

          3        law to be and raise it to a constitutional standard

          4        and say, We as citizens of this state, these are the

          5        principles that we want to apply when a punishment is

          6        imposed.

          7             COMMISSIONER RUNDLE:  If I may, because I think

          8        it's very important that we understand how you intend

          9        it to be used because people will look at this record,

         10        and I couldn't agree with you more that if it's a

         11        restatement of the existing law, as has already been

         12        litigated, I support it full-heartedly, that that is a

         13        proper statement, it is good public policy, that is

         14        what sentencing should be.

         15             But my concern is that a number of folks, and I'm

         16        not an expert in the appellate area, I wish the

         17        Attorney General was here to elaborate a bit, but I

         18        think that many have said to me their concern is that

         19        this would create unnecessary litigation in past cases

         20        where the standard has already been applied by case

         21        law.

         22             Now putting it in the Constitution may create a

         23        higher standard which would then open the door for a

         24        flood of re-litigation, and I think that's really my

         25        concern.


          1             CHAIRMAN DOUGLASS:  All right.  Do you want to

          2        respond to her statement?

          3             COMMISSIONER BARNETT:  Only to say that it is not

          4        my intent to open a Pandora's box of litigation with

          5        this amendment, that is not my intent, nor I think the

          6        intent of people who support it.  It is to just state

          7        constitutionally what we all believe the law to be and

          8        to have that standard embodied in our Constitution in

          9        the area of punishment.

         10             CHAIRMAN DOUGLASS:  Commissioner Mills.

         11             COMMISSIONER MILLS:  Thank you.  Would

         12        Commissioner Barnett yield for a question?  We

         13        discussed this in committee and I just wanted to

         14        reinforce this.  As I understand this, it is an

         15        important point that this is imposition to penalty.

         16             COMMISSIONER BARNETT:  Yes.

         17             COMMISSIONER MILLS:  In other words, as I

         18        understand this language, it does not affect the

         19        ability of the Legislature to pass any given penalty?

         20             COMMISSIONER BARNETT:  Absolutely.  It doesn't

         21        affect the underlying definition of what's a criminal

         22        activity or the penalty that would be imposed.  That's

         23        a legislative function.

         24             COMMISSIONER MILLS:  So, the existence of this is

         25        not going to declare any legislatively-mandated


          1        penalty unconstitutional?

          2             COMMISSIONER BARNETT:  No.

          3             CHAIRMAN DOUGLASS:  Commissioner Morsani.

          4             COMMISSIONER MORSANI:  I would like my three

          5        advisors to address this.

          6             CHAIRMAN DOUGLASS:  That's everybody in here, you

          7        know.

          8             COMMISSIONER MORSANI:  I know that.  No, I really

          9        support this but in everything that Commissioner

         10        Barnett says, but I'd really like to hear, to help me,

         11        from Mr. Brochin, Commissioner Barkdull and

         12        Commissioner Sundberg, if these three gentlemen who --

         13        I would really appreciate their input if that

         14        wouldn't -- and what the ramifications are, like is it

         15        going to open up some of these problems that

         16        Commissioner Rundle articulated, I would like to know

         17        that.

         18             CHAIRMAN DOUGLASS:  Commissioner Barkdull.

         19             COMMISSIONER BARKDULL:  Mr. Chairman,

         20        Commissioner Morsani, I oppose this proposal.  It's

         21        already the law.  The courts are already undertaking

         22        at the time of sentencing statistical information like

         23        Ms. Barnett has referred to into account in making

         24        those records, and the sentences are being tested

         25        against those surveys.  That's going on right now in


          1        Florida.  And I have to believe that if this language

          2        is included in the Constitution, which I realize is a

          3        statement of what's happening right now, believe me,

          4        you are going to see more litigation, more collateral

          5        attacks.

          6             Commissioner Barnett opened her remarks by saying

          7        at noon she had been addressed by a member of the DCA

          8        up here in Tallahassee and they were complaining about

          9        the number of criminal appeals they have got, well,

         10        they haven't seen nothing yet because I can tell,

         11        because our volume in the court that I was privileged

         12        to serve on has doubled in the last three years in

         13        criminal cases, and most of those are in criminal

         14        cases contesting the sentencing.

         15             This just gives them another reason to try, if

         16        this should be included and should be adopted, because

         17        now the people have said, You have to go back and look

         18        at my sentencing.

         19             CHAIRMAN DOUGLASS:  All right.  Anybody else want

         20        to be heard?  Commissioner Brochin.

         21             COMMISSIONER BROCHIN:  I am honored I am on your

         22        list now.  I think the answer to the question, in

         23        terms of if it's going to cause more litigation, it is

         24        probably not known and we probably can't say for sure.

         25        I think Commissioner Barkdull is right to some extent


          1        that there will be an attempt to litigate it because

          2        it's a change, it's a change in the Constitution and

          3        it makes a statement of what the law is.  So there

          4        will be attempts to re-litigate issues that have

          5        already been re-litigated.

          6             Courts though have the ability to summarily

          7        dispose of those issues if they believe they ruled

          8        appropriately the first time around.  So although the

          9        number may go up I'm not sure the intensity or

         10        quantity in terms of court occupation of time will

         11        significantly increase.

         12             But I think the honest answer to that is, I don't

         13        know.  I do know this, I've read quite a bit of death

         14        cases in this state and I've had the experience of

         15        reading them not just from one community but from all

         16        of our communities in the state.  And I'll debate when

         17        we do talk about the death penalty, I am convinced

         18        that there is an arbitrary and capricious result of

         19        the imposition of that penalty.

         20             And it may be very worthy to put into our

         21        Constitution and aspirational statement that allows us

         22        to address that arbitrary and capricious result.  Is

         23        it going to eradicate it?  No.  Is the proposal we're

         24        going to talk about on the death penalty going to

         25        eradicate it?  No.  But it's a step in that direction,


          1        so it's there in our Constitution and says, Penalties

          2        shall not be imposed in an arbitrary and capricious

          3        way.

          4             It is correct, as Commissioner Barkdull points

          5        out, it is the law and that's the way the law should

          6        be imposed today.  Not because it's in our

          7        Constitution, it is not.  But if it is in the

          8        Constitution, it will make the statement of the people

          9        that this is the way we want our penalties imposed in

         10        a nonarbitrary and in a non-capricious fashion.  And

         11        because it's that fundamental that's why, essentially,

         12        I think it's a good idea.

         13             CHAIRMAN DOUGLASS:  Anybody else want to be

         14        heard?  Commissioner Sundberg.

         15             COMMISSIONER SUNDBERG:  In response, with respect

         16        to what will be the impact on the courts, I believe

         17        that this will -- well, let me tell you what I

         18        understand the law to be with respect to sentences.

         19        The law has been that so long as a sentence was

         20        imposed within the legal limits prescribed by the

         21        Legislature it could not appealed, okay?  So, if it

         22        was at the very maximum or if it was at the very

         23        minimum or anywhere in between, that simply was not a

         24        basis for appeal.

         25             Now in -- under a very enlightened Chief Justice


          1        in, I believe it was in 1981 or '82 --

          2             CHAIRMAN DOUGLASS:  Was that Justice Sundberg by

          3        chance?

          4             COMMISSIONER SUNDBERG:  Beg your pardon?

          5             CHAIRMAN DOUGLASS:  Was that Justice Sundberg by

          6        chance?

          7             COMMISSIONER SUNDBERG:  It was actually his

          8        father.  But we installed in our law sentencing

          9        guidelines to address in a more specific way,

         10        sentencing disparity, and that's unreasonable

         11        disparity in sentencing.  The premise being that if

         12        you stole a hog in Dade county, you ought to get the

         13        same load if you stole a hog in Gadsden County, and

         14        sometimes that didn't happen.

         15             And one reason you wanted that unreasonable

         16        disparity out of it is because those two guys may end

         17        up in the same cell and one says, You know, I'm doing

         18        one year and you're doing five years and we both stole

         19        a hog and that doesn't make much sense.

         20             But the sentencing guidelines did give you an

         21        opportunity to appeal a sentence that was not

         22        therefore available to you.  But in those appeals,

         23        your basis of appeal was that the guidelines had not

         24        been properly applied, because even under the

         25        guidelines, and the guidelines set up indices by which


          1        you could -- it set forth sentencing ranges.  And you

          2        could exceed the range or go below the range if the

          3        judge set forth reasons to either enhance or diminish

          4        the sentence.

          5             So it was a -- there was at least standards by

          6        which that could be judged.  So I think what this does

          7        do is provide an opportunity outside the area of

          8        sentencing guidelines in an area that there heretofore

          9        has not been a basis for appeal of sentence alone, the

         10        opportunity to appeal a sentence on the premise that

         11        it was arbitrary or capricious or discriminatory and

         12        that, you know, you would make the assertion, Hey, I

         13        stole a hog in Gadsden County, everybody else is

         14        getting a year for stealing a hog and I got three

         15        years for stealing a hog and that's discriminatory.

         16             I have to agree with Judge Barkdull, I think the

         17        law is that that sort of discrimination, arbitrary and

         18        discriminatory sentences, that the law prohibits them.

         19        I agree with Commissioner Brochin that, nonetheless,

         20        we do have, and, Commissioner Barnett, we do have

         21        these sorts of inequities in sentencing.  It is most

         22        acute in the area of the death sentence, and I frankly

         23        just personally, I think we can do this language all

         24        day long and the death sentence is never going to

         25        work.  I don't believe it works.


          1             But that doesn't mean -- but I think what I would

          2        do, were it me, I think I would install this language

          3        with respect to death sentences.  I think otherwise,

          4        if you do it across the board, I think you are going

          5        to be inviting appeals of sentences without regard to

          6        whether it's applied retroactively or prospectively or

          7        what have you.

          8             CHAIRMAN DOUGLASS:  Commissioner Sundberg, how

          9        many death penalties have been carried out in Florida

         10        in the last five years?

         11             COMMISSIONER SUNDBERG:  I don't know the number.

         12             CHAIRMAN DOUGLASS:  Ten.

         13             COMMISSIONER SUNDBERG:  Ten, I'll accept that.

         14             CHAIRMAN DOUGLASS:  Oh, in the last two and a

         15        half years there's only been four.

         16             COMMISSIONER SUNDBERG:  Carried out, but

         17        there's --

         18             CHAIRMAN DOUGLASS:  Carried out.

         19             COMMISSIONER SUNDBERG:  But there's a whole lot

         20        of them on death row.

         21             CHAIRMAN DOUGLASS:  Over 300.  They are there on

         22        appeals and collateral attacks, for the most part,

         23        some almost 15 years.  So, my point is to ask you, and

         24        I happen to agree with you, that the death penalty

         25        needs visiting, but I think that it would -- doesn't


          1        apply to something like this to the Constitution, to

          2        deal only with the death penalty.  I feel if this

          3        applies, it'll have to apply across the board, which

          4        is what I think Commissioner Barnett's proposal does.

          5             COMMISSIONER SUNDBERG:  Yes, I understand.

          6             CHAIRMAN DOUGLASS:  Anybody else?  Commissioner

          7        Smith.

          8             COMMISSIONER SMITH:  Just briefly.  I wanted to

          9        add my voice to those who share the view that this is

         10        a problem and that it should be shared across the

         11        board, or it should be applied across the board.  I

         12        serve on the First Constitution -- no, I am thinking

         13        about Constitution Revision -- the First Sentencing

         14        Guidelines Commission which dealt with what were at

         15        that time just gross inequities in sentencing, not

         16        just with regard to where the sentences were being

         17        imposed, but also with regard to gender and other

         18        factors like that.

         19             You know, almost everything we do that relates to

         20        fairness, you know, there seems to be a big concern

         21        about litigation.  You know, those who convened in the

         22        first Constitution were willing to give blood for

         23        basic rights like the freedom of religion, freedom of

         24        speech, freedom of association, for life, for whether

         25        it is the death penalty or fairness in sentencing.


          1             I don't know whether I'm prepared to give blood.

          2        I was when I went to Vietnam, but I am prepared to

          3        litigate for what's fair to all of the people who

          4        happened to get caught up in our criminal justice

          5        system, so I'm going to vote yes.

          6             CHAIRMAN DOUGLASS:  Any further discussion?

          7        Commissioner Connor.

          8             COMMISSIONER CONNOR:  Mr. Chairman, I would like

          9        to make an inquiry of several questions of the

         10        sponsor.

         11             CHAIRMAN DOUGLASS:  Proceed.  She rises to

         12        answer.

         13             COMMISSIONER CONNOR:  I would like to do so, if I

         14        may, without waiving the right to comment later.

         15             CHAIRMAN DOUGLASS:  You may do so.

         16             COMMISSIONER CONNOR:  Commissioner Barnett, would

         17        you agree that where language is included in the

         18        Florida Constitution which may mirror existing law

         19        that's a part of the federal jurisprudence, that at

         20        least under the principles articulated by our Supreme

         21        Court, the court will presume that the Constitution

         22        meant something other than and different than that

         23        which was already embedded in the federal

         24        jurisprudence, and I ask you that on the basis of the

         25        TW decision, as an example, based on all that the


          1        court has stated there.

          2             COMMISSIONER BARNETT:  I was with you until you

          3        made specific reference --

          4             CHAIRMAN DOUGLASS:  Commissioner Barnett, we have

          5        got to get your mike on.

          6             COMMISSIONER BARNETT:  I was with you, I thought,

          7        until you made specific reference to In Re TW, and I'm

          8        not sure of the focus of your question.

          9             COMMISSIONER CONNOR:  I will clarify.  My

         10        recollection is that In Re TW, the court indicated

         11        that where Floridians include explicit language in

         12        their Constitution which may mirror something that's

         13        already in the federal jurisprudence, the presumption

         14        is that the state meant something more than what was

         15        already embedded in the existing law.  Without regard

         16        to TW, would you agree that that is a principle of

         17        constitutional jurisprudence in the state?

         18             COMMISSIONER BARNETT:  Not necessarily,

         19        Commissioner Connor.  The state may include something

         20        in our Constitution really without regard,

         21        necessarily, to the federal provisions.

         22             COMMISSIONER CONNOR:  What more than, if I may,

         23        and I asked you this in our committee, and maybe you

         24        have had an opportunity to have thought about it, what

         25        more than already exists in the federal law under the


          1        equal protection clause, what more than already exists

          2        under Article I, Section 2 does this add in the way of

          3        protection when it comes to sentencing than a

          4        convicted person would already have by either the

          5        federal or state constitutional protection; what more,

          6        if anything?

          7             COMMISSIONER BARNETT:  The intent is to focus on

          8        the punishment phase and to make a statement specific

          9        to that phase with regard to how punishments are going

         10        to be imposed.  The current provisions of the federal

         11        Constitution and the Florida Constitution which deal

         12        with equal protection, due process, rights of the

         13        accused, primarily apply to the process, the

         14        protections, the process of the accused, and to the

         15        degree they apply to the punishment phase, which they

         16        do, and should, the evidence that is available

         17        indicates that despite that being what the law of

         18        Florida is, that so far we have not been able, either

         19        through those constitutional provisions or what the

         20        law is, to have -- to reach that goal as set forth in

         21        the statement that I propose to put in the

         22        Constitution.

         23             COMMISSIONER CONNOR:  Would it mean more than,

         24        for instance, with respect to the racial disparity you

         25        made reference to, would it mean more than no person


          1        shall be deprived of any right because of race?  In

          2        other words, the language that you are offering, which

          3        I understand in part to be occasioned by the

          4        disparities that we see statistically, would, in your

          5        estimation, would it mean any more than that language?

          6             COMMISSIONER BARNETT:  I believe it would be

          7        complementary to that language, but it's language

          8        related and focused specifically on the punishment

          9        phase.  It is not an amendment to Article II, IX or

         10        XVI.

         11             COMMISSIONER CONNOR:  I understand.

         12             COMMISSIONER BARNETT:  It's important to

         13        recognize it is only to the punishment stage, and so

         14        it is to focus those standards on the punishment

         15        phase.  It would be complementary to the existing

         16        provisions in the Constitution.

         17             COMMISSIONER CONNOR:  What more, if anything, and

         18        I asked this of the public defender who appeared

         19        before our committee, what more, if anything, could

         20        one argue on behalf of a client than they can already

         21        argue today under the existing constitutional

         22        jurisprudence?

         23             COMMISSIONER BARNETT:  I do not try these kinds

         24        of cases, so this is an effort, someone who does try

         25        them, jump up and correct me if need be,


          1        discrimination, for example, that it might give them

          2        the argument that, to show statistical evidence

          3        regarding patterns of discrimination as opposed to

          4        discrimination as applied just in that particular

          5        case, that's one example.

          6             COMMISSIONER CONNOR:  Okay.  And then just to

          7        close and wrap this up, because of the very thing that

          8        you mentioned, a two-part question.  One, if in fact

          9        the data demonstrates statistical deviations that

         10        suggest discrimination for a class of people in our

         11        criminal justice system, A, would this amendment

         12        afford any basis for relief for those who felt that

         13        they could demonstrate that they fell within that

         14        class?  B, what are the implications, if any, of an

         15        affirmative action program as it relates to remedying

         16        the effects of past discrimination among those who

         17        find themselves in the custody of our criminal justice

         18        system?

         19             COMMISSIONER BARNETT:  It certainly would give

         20        someone who is currently involved in the sentencing

         21        phase or appealing the sentencing phase an opportunity

         22        to raise evidence regarding discrimination or an

         23        arbitrary application of the law.

         24             COMMISSIONER CONNOR:  But my question is for

         25        those who have already been sentenced then and who are


          1        in the custody of the Department of Corrections?

          2             COMMISSIONER BARNETT:  I believe that people with

          3        far more experience than I have already answered that

          4        question, that there is the possibility that it could

          5        give them an option to come back and raise those

          6        questions and that the courts would have to deal with

          7        that, that there is an opportunity.  There is not the

          8        intent to reopen the litigation.  I think Commissioner

          9        Kogan commented on the Court's ability to deal with

         10        those summarily, or perhaps to, at their discretion,

         11        perhaps, to look at them.

         12             But it does give an opportunity, I believe, from

         13        what I have heard, that that will happen.  It's not

         14        the intent of this to open that litigation up, but

         15        it's not troublesome to me, that if in fact, that

         16        occurred because -- because, particularly where the

         17        ultimate punishment is being extracted, I would want

         18        the opportunity to make sure that it's not being

         19        imposed in a discriminatory matter.

         20             COMMISSIONER CONNOR:  Could you just respond to

         21        the affirmative action issue that it may bear on?  In

         22        other words, if our data demonstrates a racial class

         23        has been the apparent victim, at least from a

         24        statistical standpoint, a pattern of discrimination,

         25        would this language afford the benefit of enhanced


          1        relief under a potential affirmative action program?

          2             COMMISSIONER BARNETT:  I don't know the answer to

          3        that.

          4             COMMISSIONER CONNOR:  Okay.

          5             CHAIRMAN DOUGLASS:  Does anybody else want to be

          6        heard before Commissioner Connor?  I think you wanted

          7        the floor to speak on the proposal also in addition to

          8        your questions.

          9             COMMISSIONER CONNOR:  I do.  And I would welcome

         10        hearing from others before I do that because I have

         11        been wrestling, frankly, on this.

         12             CHAIRMAN DOUGLASS:  Are there any more proponents

         13        before Commissioner Connor speaks?  Any other

         14        opponents before he speaks?  Commissioner Connor, it's

         15        your turn.

         16             COMMISSIONER CONNOR:  Mr. Chairman, I am going to

         17        vote in favor of this proposal.  And I do so, frankly,

         18        with a great deal of internal conflict because I don't

         19        know what the implications are.  Certainly, I affirm

         20        the notion that we ought to oppose, with all vigor,

         21        arbitrary, discriminatory and capricious sentencing.

         22        And I will tell you a story that probably is what

         23        turns it for me.

         24             When I was a young lawyer, I was attending a

         25        trial lawyers meeting in a country club and after our


          1        meeting I had gone through the lounge area on my way

          2        out to the car and a judge of that circuit and a group

          3        of other lawyers were present, and this particular

          4        judge had just recently been assigned to the criminal

          5        division.  And that was deemed by many judges penance

          6        that had to be paid.  It was not pleasant duty for

          7        most judges.

          8             And I asked the judge, I said, Well, Judge, how

          9        are you enjoying your service in the criminal

         10        division?  And he made this response, and it was a

         11        response I didn't expect.  He said, Oh, Kid, he says,

         12        I like it.  And then this is a direct quote.  He said,

         13        I like putting the niggers in jail.  You could have

         14        knocked me over with a feather.  I turned white as a

         15        ghost, I was profoundly embarrassed.  And there was

         16        laughter from the group that was seated in this booth;

         17        there were about five or six lawyers in that booth.

         18             I made a hasty retreat and couldn't sleep that

         19        night.  And I later consulted with older, more

         20        experienced lawyers in the circuit about what if

         21        anything I should do, what if anything I should say

         22        about it.  And I was assured that those sentiments

         23        could certainly not have been genuine, that I would

         24        be -- I would be a -- I would prove to be a point of

         25        embarrassment for the judge and that nobody would take


          1        that anything other than as coarse humor and that I

          2        shouldn't say anything about it, and I didn't.  I

          3        didn't.

          4             And over the course of time I saw this judge

          5        cycle through the various assignments on the bench,

          6        whether it be civil or family or criminal, and I

          7        always worried about that and I always wondered about

          8        it.  And I was always -- I always wondered about

          9        whether I had done the right thing not to say anything

         10        about it, not to provoke a controversy about it.  And

         11        as a very young lawyer who was just feeling his way

         12        around and trying to figure out how things are done

         13        and listening to older lawyers, I took some comfort in

         14        that.  And we have all seen most recently in our

         15        university system how a kind of, apparently, a casual

         16        indiscreet remark could be interpreted.

         17             The implications of that remark, I think, coming

         18        from where it came from at the time, I think, had I

         19        been black, and had I been representing criminal

         20        clients, which I did not, I was a civil lawyer at that

         21        point, would have, I am confident, provoked even

         22        greater concern.  Since this happened in my memory as

         23        a lawyer.  I'm old, but I ain't that old.

         24             And after all of the gains that have supposedly

         25        been made in the civil rights movement, I am confident


          1        that the public confidence in the administration of

          2        justice will be enhanced by the inclusion of this kind

          3        of language.  I worry that it will produce the

          4        potential for collateral attacks.  I think that is a

          5        legitimate concern and it is a concern I express to

          6        you.  And I worry about using statistical bases and

          7        retrospective analyses for evaluating whether or not

          8        discrimination occurred in a given case.

          9             But I can tell you on the heels of an actual

         10        experience, as a member of the Bar with a judge who

         11        sat on the bench and who made that remark, however

         12        cavalier it was intended, and however lacking genuine,

         13        if it was, it was intended, it's made an impression on

         14        me, notwithstanding the reservations and concerns that

         15        I have about collateral attacks, that we do well to

         16        make this a matter of explicit language within the

         17        Constitution.  I'm going to support it.

         18             CHAIRMAN DOUGLASS:  Discussion, further

         19        discussion?  If not, Commissioner Barnett, you can

         20        close.  Anyone want to speak?  Go ahead.

         21             COMMISSIONER BARNETT:  Thanks, Mr. Chairman, and

         22        thanks to the members of the commission.  Because I

         23        believe that Commissioner Connor's experience is not

         24        unusual or unique in our justice system, then and now,

         25        and because I believe the citizens of this state are


          1        fair and are just and want our justice system to

          2        reflect our values is why I have brought this forward.

          3             I was reading, in preparation for this, the

          4        Racial and Ethnic Bias Study Commission.  And there

          5        was, on the cover of the document, there is a little

          6        Aesop's fable and I would like to read it to you.  I

          7        have to put my glasses on, because like Commissioner

          8        Connor, I'm getting older.  But this I think was very

          9        meaningful.

         10             CHAIRMAN DOUGLASS:  Commissioner Connor, you may

         11        want to rise for personal privilege on that one.

         12             (Laughter.)

         13             COMMISSIONER BARNETT:  Okay.  A swallow had built

         14        her nest under the eaves of a court of justice.

         15        Before her young ones could fly, a serpent gliding out

         16        of his hole ate them all up.  When the poor bird

         17        returned to her nest and found it empty, she began a

         18        pitiable wailing.  A neighbor suggested by way of

         19        comfort that she was not the first bird who had lost

         20        her young.  True, she replied, but it is not only my

         21        little ones that I mourn, but that I should have been

         22        wronged in that very place where the injured fly for

         23        justice.

         24             That is our judicial system, and I believe that

         25        when they appear before our system, they need to know


          1        that whatever sentence is imposed will not be

          2        arbitrary, will not be capricious, and will not be

          3        discriminatory; and I ask for your support.

          4             CHAIRMAN DOUGLASS:  Is everybody ready to vote?

          5        There are people out of the chamber; have we got a

          6        quorum?  I think we have a quorum.  Okay, a bare

          7        quorum.  Okay.  We'll go ahead and vote and then we'll

          8        find out if we have got a quorum, I guess.  Open the

          9        machine and let's vote.

         10             (Vote taken and recorded electronically.)

         11             CHAIRMAN DOUGLASS:  Lock the machine and announce

         12        the vote.

         13             READING CLERK:  Eighteen yeas, 4 nays,

         14        Mr. Chairman.

         15             CHAIRMAN DOUGLASS:  By your vote, you have

         16        adopted the proposal.  The next proposal is No. 40 by

         17        Commissioner Marshall who is back with us.  He had

         18        been excused for the morning part of the session, he

         19        had an unavoidable absence.  And I would ask you to

         20        read it, please.  It was approved by the Committee on

         21        Education and re-referred and disapproved.  So,

         22        Commissioner Marshall, after she reads it, we'll call

         23        on you to present the proposal.

         24             READING CLERK:  Proposal 40, proposal to revise

         25        Article IX, Section 4, Florida Constitution;


          1        authorizing certain counties to be divided into more

          2        than one school district.

          3             CHAIRMAN DOUGLASS:  Commissioner Marshall, you

          4        are recognized.

          5             COMMISSIONER MARSHALL:  Thank you, Mr. Chairman,

          6        Members of the Commission.  Mr. Chairman, I think your

          7        report of the action by the Education Committee may be

          8        in error.

          9             CHAIRMAN DOUGLASS:  I was just reading what the

         10        special order said.

         11             COMMISSIONER MARSHALL:  It may not be very

         12        important, but my recollection is, and I think the

         13        minutes of the Education Committee would bear this

         14        out, was that, when it came up the first time on

         15        December the 14th or thereabouts, the committee did

         16        not take a vote.  I had to be out of the room at the

         17        time, and as a courtesy to me, they did not vote on

         18        it.  When it came to a vote last week, it was a tie

         19        vote, three to three, I'm really quite sure of that.

         20        That may not have any consequence here, but in any

         21        case.

         22             CHAIRMAN DOUGLASS:  No, I think that's

         23        appropriate to point out, because a tie vote without a

         24        full committee is still a disapproval, but it's not

         25        quite the same disapproval as a majority vote.


          1             COMMISSIONER MARSHALL:  That's my interpretation,

          2        Mr. Chairman.

          3             CHAIRMAN DOUGLASS:  Right.  Commissioner

          4        Marshall.

          5             COMMISSIONER MARSHALL:  I think the pages are

          6        being passed out, not just an amendment, but a package

          7        of some printed material.  Is that it?  Yes, under the

          8        title of, Data on Selected Aspects of Florida Public

          9        Schools.  Is that being distributed?  Because I would

         10        like you to have that, Commissioners, because I want

         11        to walk you through it.

         12             Can somebody on the staff -- yes, here, it is.  I

         13        have one, thank you.  The information contained in

         14        that packet of material with the title -- under the

         15        title, Data on Selected Aspects of Florida Public

         16        Schools, was prepared originally for the presentation

         17        to the Education Committee on December the 14th.

         18             I call your attention to that information now, as

         19        I did to the committee then, for a specific purpose,

         20        to provide background information on the Florida's --

         21        on the condition of Florida's public schools, without

         22        which I don't think commissioners are in a position to

         23        cast an informed vote on Proposal 40.

         24             But in addition to that data, I think might play

         25        a useful role for commissioners in debating,


          1        considering other issues of education.  The advantage

          2        of having hard data available on our schools relieves

          3        us of the need to use terms like "good" or "bad" in

          4        describing our schools.  One is able to review the

          5        data and then provide your own adjectives as to

          6        whether our schools are good or bad.

          7             Let me take just a few minutes to lead you

          8        through these data, if I may, under the title of

          9        selected aspects.  And I'll move through this quickly,

         10        but I think you will find this information to be of

         11        some use.  The first sheet after the cover is

         12        entitled, Current Expenditures for Pupils in Public

         13        Elementary and Secondary Schools.  And if you will

         14        look down the left-hand column for the years '74 and

         15        '75, you will find Florida just a little ways below

         16        halfway down at $3197.

         17             If you go to the next column, Florida is a little

         18        bit higher at $4,053.  That's for '80 and '81.  For

         19        1990 and '91, Florida has moved -- I have one

         20        someplace, a little higher, about a third of the way

         21        down to $5761.  And in the last column, '93 and '94,

         22        we are just about at the halfway point among the 50

         23        states, I guess it's 51 including the District of

         24        Columbia in the nation.

         25             If you will turn the page, we have the average


          1        SAT scores by state.  That is a pretty good measure of

          2        the quality of our public schools.  Again, if you look

          3        in the first column, 1974, '75, Florida is about

          4        two-thirds of the way down of the 51 states in the

          5        district.  In the second column, 1980 and '81, we are

          6        a little bit farther down.  In the third column, still

          7        a little bit farther, under '82, about four-fifths of

          8        the way down, I suppose.  And in the last column,

          9        another notch or two lower.  Again, we are comparing

         10        Florida's achievements in terms of SAT scores with

         11        other states in the country.

         12             The next slide, the next page, shows our scores,

         13        SAT combined scores from 1977 to '95 in comparison to

         14        the scores from the rest of the country.  I want to

         15        call your attention in a rather special way to the

         16        next page entitled No. 274, scholastic achievement,

         17        and so on.

         18             Some of the speakers that appeared before the

         19        Education Committee in December were using adjectives

         20        with which I could not totally agree.  They described

         21        Florida's public schools as being in pretty good

         22        shape.  They talked about gains in SAT scores for the

         23        last few years, particularly -- or at least holding

         24        steady with particular pointing -- making reference to

         25        scores of minority groups, students who presumably


          1        were improving their standing.

          2             Let me call your attention to this No. 274 point

          3        because it starts in 1967.  And if you look at -- look

          4        first at verbal total for 1967, the score was 466, the

          5        average score.  It went down to 460 in 1970 and 434 by

          6        1975.  In fact, 424 by 1980.  And then we begin to

          7        recover and the scores have indeed increased some

          8        since then.

          9             But when we are comparing scores in recent years,

         10        it's not fair, not wise, to fail to look at where we

         11        were in 1967, because that is the reference point that

         12        really counts.  If you want to compare our students

         13        with where they ought to be, you must start with the

         14        decline that began about 1967 or '70.

         15             The SAT scores were, I think the term is,

         16        re-centered or repositioned in 1995 to in fact make

         17        the scores look better than they are, and those data

         18        are not included here.

         19             The next sheet, high school graduation rates, you

         20        will see that we are pretty well down two-thirds or

         21        three-fourths of the way down in 1992, '93.  In last

         22        place in '94 and '95.  A little better than that in

         23        '95 and '96.

         24             Let me caution you, however, Commissioners, to

         25        say that we do not have a very precise way to measure


          1        graduation rates.  And in fairness to our public

          2        schools and those who operate them, I don't really

          3        think Florida is that bad.  But in some reasonable

          4        analysis basis, we are near the bottom and not in very

          5        good shape.  Dropout rates are calculated in different

          6        ways even in our own state and certainly in many

          7        different ways across the country, so don't take that

          8        too literally.

          9             On the next page we see teachers as a percent of

         10        school district total staff.  And I included that to

         11        let you know where we stand with respect to other

         12        states regarding the number of our total school

         13        personnel who are in the classroom.

         14             Our teachers oftentimes complain that

         15        appropriations for education oftentimes result in more

         16        administrators, and counselors, and adjunct people of

         17        various kinds and not more teachers.  You can see that

         18        the ratio is not very favorable; that is, we have,

         19        compared to other states, more people, more school

         20        personnel in administrative and other posts and fewer

         21        in classroom teaching than most other states.

         22             Turn to the next page, if you will please, table

         23        20-2 shows the average science proficiency of

         24        eighth -- scores of eighth grade students by country

         25        and sex, and you will find the United States in the


          1        first column under country, about one-third of the way

          2        down; not a terribly favorable position.

          3             If you will turn the page to the next sheet, you

          4        will see comparable scores for mathematics proficiency

          5        in the eighth grade, and again you will find the

          6        United States, well, a little over halfway down.  Not

          7        a very comforting set of data.

          8             Now, I want to spend just a minute or so on

          9        National Education Goals.  In 1990, we had established

         10        in this country an organization that goes under the

         11        title of, The National Education Goals Council.  And

         12        if you will read the following red sheet under the

         13        title, National Education Goals, or glance through it,

         14        you will see that that is a bipartisan effort whose

         15        purpose was to establish goals and then measure the

         16        achievement of our public school students against

         17        them.

         18             I'm going through this pretty fast, but of course

         19        you may go back and read any of that, refer to any of

         20        that you like, and I'll be glad to try to respond to

         21        it if you wish.  The National Education Goals, eight

         22        of those are shown on the next page.  Those that we

         23        are most concerned with are, in terms of academic

         24        achievement, are 3, 5, and 7.  And I'll refer to some

         25        data in a little bit here that focuses on the academic


          1        achievements.

          2             If you look at the next sheet under, Data

          3        Highlights.  That is worth spending a minute on, I

          4        think, because it is a summary of the National Goals'

          5        panel as to where we stand now with respect to our

          6        attempts to achieve those goals.  Reading achievement

          7        at grade 12 has declined.  The percentage of secondary

          8        school teachers who hold a degree in their main

          9        teaching assignment has increased.  Fewer adults with

         10        a high school diploma or less are participating in

         11        adult education compared to those who have

         12        postsecondary education.

         13             Student drug use has increased.  Attempted sells

         14        of drugs at school have increased, threats and

         15        injuries to public school teachers have increased.

         16        More teachers are reporting disruptions in their

         17        classrooms interfere with their teaching.

         18             And then the next several sheets, I want to go

         19        through those very quickly, give some examples of the

         20        goals and our records in our attempts to achieve them.

         21        If you look at Exhibit 6 on the next page, reading

         22        achievement in grade 4, yes, the goal that the panel

         23        hoped would be achieved by the year 2000 is shown on

         24        the right as 100 percent achievement purpose.

         25             And we were, in 1992, it's shown at 29 percent.


          1        And by 1994, 30 percent.  If you look below that, you

          2        will see the same corresponding results for grade 8

          3        and below that for grade 12.  And I won't read those

          4        figures, you can see we are not in very good position

          5        with respect to achieving those goals that we have set

          6        up for the year 2000.

          7             The next page shows a comparable result for

          8        writing achievement in grades 4 and 8, a little

          9        better, however.  The next page, comparable results

         10        for mathematics achievement in grades 4, 8 and 12, a

         11        long ways to go if we were to achieve what we hoped to

         12        by the year 2000.  The next page, science achievement

         13        for grades 4, 8 and 12.

         14             And then we get into -- well, history achievement

         15        on the next page.  And on the next page gets into

         16        student drug and alcohol abuse.  Which you can see,

         17        drug use has increased, alcohol use has maintained

         18        pretty much the same level.  And next page, sale of

         19        drugs at school has increased.  The next page,

         20        disruptions in class by students has decreased a

         21        little bit, increased according to teacher reports.

         22             I'm not going to go through the rest of those,

         23        Commissioners, because I think they speak for

         24        themselves and you are free to examine those data at

         25        your leisure.


          1             There are, at the end of the package, two sheets

          2        on counties in Florida with elected superintendents

          3        and appointed superintendents.  I included those, not

          4        because they have direct bearing on Proposal 40, but

          5        because those -- the comparison of counties with

          6        elected superintendents and appointed superintendents

          7        is a matter of considerable interest to us in a number

          8        of contexts.  And if you want to refer to that data,

          9        you may do so.

         10             Commissioners, my point in taking your time to

         11        look at these data is to try to persuade you that we

         12        were in a desperate situation with respect to our

         13        schools.  I say again, I'm not here to criticize the

         14        schools, public school bashing is not my niche.  The

         15        public schools have an enormous number of problems

         16        that they are trying valiantly to deal with.

         17             I have a very considerable investment in the

         18        public schools in this country.  I taught for six

         19        years at the high school level, high school physics,

         20        coaching athletics, and I have spent another good many

         21        years in public education, all of my career in tax

         22        support of institutions of higher education.

         23             But I'm desperate for ways to improve educational

         24        opportunities for Florida's children, particularly

         25        those from the inner-cities and most particularly the


          1        children from ethnic minority groups.

          2             Proposal 40 would authorize the Legislature,

          3        subject to local referendum, to subdivide large county

          4        school districts into smaller, more manageable

          5        districts, and more responsive districts.  It is a

          6        proposal that was advanced to us, I think, in Fort

          7        Lauderdale, as I recall, by Representative Tom Warner,

          8        an idea that was generated by Republican

          9        Representative Warner and Senator Ron Kline, a

         10        Democrat.

         11             The proposal would apply only to school districts

         12        with more than 45,000 students, and it would prevent

         13        the creation of districts with fewer than 15,000

         14        students.  School funding in this proposal would not

         15        be affected since funding would continue after the

         16        action to change the district continued to be based on

         17        county-wide tax rolls.

         18             Additional safeguards include an independent

         19        commission to draw district lines, review by the

         20        courts to ensure compliance with applicable state and

         21        federal law, and as the starting point in the whole

         22        procedure, approval of a referendum by the voters in

         23        the entire school district or the county.

         24             Data from research shows that, on average, school

         25        districts with 30 to -- 30,000 to 50,000 students have


          1        lower administrative costs per student; those with

          2        fewer than 30,000 and those with more than 50,000

          3        students have higher administrative costs.

          4             Research by Professor Lawrence Kenney of the

          5        University of Florida shows similar results in terms

          6        of academic performance.  He's found that SAT scores

          7        are 2 percent higher in states that have over two

          8        districts per county than states with one or two

          9        districts per county.

         10             In other states, Alabama, Mississippi,

         11        California, similar results have been shown.  But the

         12        most compelling argument in favor of Proposal 40, I

         13        believe, is not reduce costs or improved student

         14        performance, but the opportunities some small school

         15        districts would provide for the enhancement of two

         16        concepts I believe are essential to improving our

         17        schools' accountability and parent participation.

         18             I think I skipped over two sheets in the handout

         19        materials in my haste to get through those, but if you

         20        look back in those you'll find one of the sheets shows

         21        that something like 78 percent of the parents surveyed

         22        participate in after school meetings with teachers and

         23        in other ways participated in the programs of the

         24        schools their children attend.

         25             At the same time, reports of teachers and


          1        administrators, in terms of their invitations to

          2        parents to participate in school affairs, I think,

          3        comes out at something like 43 percent.  And that

          4        seems to me to contain a message.  It's a message that

          5        parents are more willing to participate, more eager to

          6        participate in the education of their children than

          7        the schools are in having them do so.

          8             Let me say a few words further about the -- in

          9        detail about what Representative Kline and Senator --

         10        Representative Warren and Senator Kline have proposed.

         11        The Legislature would enact a special law to draw

         12        school district boundary lines which would be subject

         13        to review, as I said a minute ago, by the circuit

         14        court for compliance with applicable state and federal

         15        laws.  Funding for operation and capital outlay would

         16        be calculated on a county-wide basis, which means that

         17        tax monies would be earned and allocated to individual

         18        schools on the same per student basis as they are now.

         19             One of the questions that came up in the

         20        committee hearings, committee review of this matter,

         21        was what's happening in other states.  And the staff

         22        has been good enough to do some research on that.  Let

         23        me just run past you the names of some other states

         24        and the numbers of school districts those states have.

         25             Alabama has 127; Colorado, 176; Georgia at 101;


          1        Indiana, 292; Kentucky, 176; Michigan, 555;

          2        Mississippi, 153; and so on.  There are a few states

          3        that have fewer school districts than we do.  Hawaii,

          4        for example, has one, by act of their Legislature.

          5        Most of those states, however, are not populous

          6        states.  Utah has 40.  Wyoming has 49.  Nevada has 17.

          7        But the great majority of states have far fewer -- beg

          8        your pardon, far more school districts than we have.

          9        And that reflects an important concept in the

         10        development, the evolution of the American public

         11        school.

         12             It started out to be a neighborhood enterprise,

         13        one in which parents, taxpayers, citizens would play

         14        an important role and it's difficult to do that in

         15        school districts that are as large as some of ours.

         16             Thirteen Florida counties would be eligible under

         17        proposal 40 to subdivide into smaller districts, those

         18        with 45,000 students or more.  They are Dade, Broward,

         19        Hillsborough, Palm Beach, Duval, Orange, Pinellas,

         20        Polk, Brevard, Escambia, Lee, Seminole, and Volusia.

         21             CHAIRMAN DOUGLASS:  Commissioner Marshall, I hate

         22        to interrupt you, but I'm reminded by the timekeeper

         23        that you have used ten minutes and you certainly, you

         24        know, I don't want to interrupt your presentation, but

         25        that's the rule we try to limit to that.


          1             COMMISSIONER MARSHALL:  Thank you, Mr. Chairman.

          2        I will wind up in a minute or so, thank you.  The

          3        major problems of our schools, I believe, are

          4        structural.  Massive school districts are simply not

          5        structured to be accountable and responsive.  I've

          6        been asked also what the education establishment

          7        thinks of this proposal.  Commissioner Brogan

          8        testified before our committee in one of our earlier

          9        meetings and spoke favorably.  On the chance that I

         10        might have misunderstood him, I called Commissioner

         11        Brogan last week to refresh my memory and he stated

         12        once again his vigorous endorsement of Proposal 40.

         13             I remind you finally that it's been 44 years

         14        since Brown vs. Board of Education was handed down by

         15        the United States Supreme Court.  If you believe that

         16        there has been significant progress for black

         17        children, for minority children in our schools, you

         18        are looking at a different set of data than I.  It's

         19        been 15 years since the publication of a nation at

         20        risk, the publication put out by number of

         21        distinguished Americans, in which they called the

         22        condition of our public schools the moral equivalent

         23        of war.  If that's the case, we have lost the war.

         24             And finally, let me say, reflect the thought

         25        passed onto me by Commissioner Brogan.  We are locked


          1        into a system of 67 school districts, some as large as

          2        about -- one as large as 350,000 students, a system

          3        that many people believe does not serve our students

          4        very well.

          5             If we don't do something about that now with

          6        constitutional revision, we'll remain locked into that

          7        system for another 20 years.  I ask you Commissioners

          8        to think carefully about whether or not you want to do

          9        that.  With that, Mr. Chairman, Commissioners, I

         10        conclude my remarks only with a plea that you support

         11        Proposal 40.  Thank you very much.

         12             CHAIRMAN DOUGLASS:  Commissioner Scott.

         13             COMMISSIONER SCOTT:  Mr. Chairman, Commissioners,

         14        let me speak briefly in favor of this.  This comes out

         15        of Palm Beach County, and if you don't know, that's

         16        where Senator Kline and Representative Warner -- I

         17        also represent part of that district, and it's

         18        important for a number of reasons.  I mean, we happen

         19        to have drawn this county of Palm Beach which goes all

         20        the way from Vero or north of Jupiter, I forget

         21        exactly where it cuts off, down to Boca Raton.

         22             And this proposal is optional, will require a

         23        vote of that county and would allow them, if they

         24        wanted to, in order to, if they believe, improve their

         25        school system to have a south county and a north


          1        county or whatever school district.  It doesn't just

          2        apply to them, but it is optional, it does require a

          3        vote of the people.

          4             And we are trying all sort of things in

          5        education, charter schools, smaller schools, smaller

          6        classrooms, smaller school districts may well work

          7        well in some areas.  And I at least think they ought

          8        to have a chance to try it.  So, we would ask your

          9        favorable consideration.

         10             I know it's late and on the last day of our

         11        meeting, but you know, if you have questions as we go

         12        along we can try and address them.

         13             Some of the school people won't like this, I'm

         14        sure.  Perhaps some of the administration may not like

         15        it, maybe some of the superintendents, but we think

         16        there ought to be a chance for counties to try this.

         17        So, I would ask your favorable consideration to

         18        Commissioner Marshall's proposal.

         19             CHAIRMAN DOUGLASS:  Commissioner Riley who is

         20        Vice Chairman of the Education Committee.

         21             COMMISSIONER RILEY:  Mr. Chairman, I had an

         22        amendment that should have been passed out.

         23             CHAIRMAN DOUGLASS:  There is an amendment on the

         24        table.

         25             READING CLERK:  On the desk, Mr. Chairman.


          1             CHAIRMAN DOUGLASS:  It's on the desk.  Would you

          2        read the amendment, please?

          3             READING CLERK:  By Commissioner Riley, on Page 1,

          4        Line 26, "Delete the number 45,000 and insert 75,000."

          5             CHAIRMAN DOUGLASS:  All right.  Commissioner

          6        Riley.

          7             COMMISSIONER RILEY:  If I may speak to the

          8        amendment.  The Commission on Education -- the

          9        Committee on Education did not support this

         10        unanimously.  And one -- there were a variety of

         11        reasons.  One of the main reasons that I did not, and

         12        this amendment will fix that, is that as I look at the

         13        list of number of students in the counties that we

         14        have in the State of Florida, and we look at 20 years

         15        of the effect of this amendment in our Constitution,

         16        with the population growth that we have in this state

         17        now and no doubt will continue to have, the number of

         18        counties that this would affect, I think, would be

         19        enormous, and that concerns me.

         20             So I have, with the agreement of Commissioner

         21        Marshall, added or made the amendment that the 45,000

         22        instead would be 75,000.  I'm more comfortable with

         23        this, and I would ask that we support this amendment.

         24             CHAIRMAN DOUGLASS:  All right.  This is on the

         25        amendment.  Commissioner Barkdull.


          1             COMMISSIONER BARKDULL:  Commissioner Riley, yield

          2        for a question, please?

          3             CHAIRMAN DOUGLASS:  She yields.

          4             COMMISSIONER BARKDULL:  Commissioner, do you know

          5        how many counties, if you go to 75,000, would be

          6        impacted today?

          7             COMMISSIONER RILEY:  I gave my list to

          8        Commissioner Marshall and I didn't get it back, but I

          9        think it --

         10             COMMISSIONER MARSHALL:  Seven.

         11             COMMISSIONER RILEY:  Seven.

         12             COMMISSIONER BARKDULL:  Seven.

         13             COMMISSIONER RILEY:  Seven as opposed to the 13.

         14             CHAIRMAN DOUGLASS:  So, 20 total?

         15             COMMISSIONER RILEY:  Instead of 13, it would be

         16        fewer counties that would be impacted by this.

         17             CHAIRMAN DOUGLASS:  Okay.  So it would be 7

         18        instead of 13?

         19             COMMISSIONER RILEY:  Yes.

         20             CHAIRMAN DOUGLASS:  On the amendment.

         21             COMMISSIONER RILEY:  If I may add to that, the

         22        break in that is fairly large at that point, and so

         23        the chances of those counties having lesser number of

         24        students than the 75,000, it would be a good period of

         25        time before they would have that number of students


          1        probably that they would have the option of dividing.

          2             CHAIRMAN DOUGLASS:  All right.  Any further?

          3        Yes, Commissioner Barton.

          4             COMMISSIONER BARTON:  Perhaps I should ask

          5        Commissioner Marshall, he has the list.

          6             CHAIRMAN DOUGLASS:  Go ahead.  Commissioner

          7        Riley.

          8             COMMISSIONER RILEY:  And maybe together we can

          9        pull them together.  But if you go to the paragraph on

         10        the staff information on this proposal that has the 13

         11        school districts that would be affected, it does not,

         12        for instance, then include, I think, Polk, Pinellas,

         13        Escambia; those are not affected.  Probably those in

         14        this group know the ones that are the larger,

         15        obviously Dade, obviously Broward, Duval,

         16        Hillsborough, Orange.

         17             CHAIRMAN DOUGLASS:  Pinellas.

         18             COMMISSIONER RILEY:  The typically larger

         19        counties in our state.

         20             CHAIRMAN DOUGLASS:  Would anybody be able to tell

         21        us which counties it affects?  We know the large ones,

         22        but where is the break?

         23             COMMISSIONER MARSHALL:  Mr. Chairman, yes, I have

         24        some data provided through the kindness of

         25        Commissioner Riley, although, Commissioner Riley, you


          1        might be able to find this more quickly than I.

          2             CHAIRMAN DOUGLASS:  Well, does anybody -- while

          3        we are waiting on this, Commissioner Morsani, do you

          4        want to speak to this or do you have a question?  You

          5        have your choice.

          6             COMMISSIONER MORSANI:  No, I don't want to speak

          7        to the amendment.  It's 7 counties; you have already

          8        named them.

          9             CHAIRMAN DOUGLASS:  This is an amendment.

         10             COMMISSIONER MORSANI:  Yes, I realize that.

         11             CHAIRMAN DOUGLASS:  Which raises the level to

         12        75,000 from 45 which was in the original proposal.  I

         13        think what they were trying to do was to see what

         14        counties were affected by this.  But on the amendment,

         15        I think if you're ready to vote on the amendment and

         16        then we can go to the proposal, everybody in favor of

         17        the amendment, say aye.  Opposed?

         18             (Verbal vote taken.)

         19             CHAIRMAN DOUGLASS:  It carries.  It is now

         20        amended and you are on the proposal.  Now you can give

         21        us that information.

         22             COMMISSIONER RILEY:  Now that you have voted on

         23        them, can I tell you what they are?

         24             CHAIRMAN DOUGLASS:  Well, it's still there.

         25             COMMISSIONER RILEY:  Broward, Dade, Duval,


          1        Hillsborough, Orange, Palm Beach and Pinellas.

          2             CHAIRMAN DOUGLASS:  All right.  Now Commissioner

          3        Morsani.

          4             COMMISSIONER MORSANI:  I need a couple of

          5        clarifications of Commissioner Marshall.  We hear all

          6        these statistics and I'm confused about in some of

          7        your data, and I just -- I'm sure I just don't

          8        understand it.  In the data on selected aspects of

          9        Florida public schools there's an inconsistency, or

         10        there's probably not, but I just don't -- maybe I

         11        can't add.  You know, in the automobile business, we

         12        don't know how to add and multiply, we don't know how

         13        to subtract and divide.

         14             CHAIRMAN DOUGLASS:  You do when you are filling

         15        out a contract.

         16             COMMISSIONER MORSANI:  I said multiply and to

         17        add, we know how to subtract and divide.  But if you

         18        look at where it says, as an example, any part of it,

         19        it says "appointed superintendents," you're saying

         20        like in Hillsborough County, teachers as a percent of

         21        district staff, 89.9 percent and on the average

         22        87.6 percent, and without, with elected

         23        superintendents, 88.36 percent.

         24             However, in your other data sheet, up close to

         25        the front, it says that teachers, as a percent of


          1        total district staff, is 48.76.  I don't understand

          2        where I'm missing something.

          3             COMMISSIONER MARSHALL:  The first one showing

          4        teachers as percent of total school district staff is

          5        a statewide average.

          6             COMMISSIONER MORSANI:  That's right.

          7             COMMISSIONER MARSHALL:  And that's a long ways, I

          8        admit, 48.76 percent from 88.3 percent reported by --

          9             COMMISSIONER MORSANI:  No, you go on back and

         10        look at both of those sheets.

         11             COMMISSIONER MARSHALL:  For statewide averages

         12        for those counties?

         13             COMMISSIONER MORSANI:  Well, for the whole

         14        county.  Look at the statewide average on those two

         15        sheets are entirely different numbers than what you

         16        have got on the front sheet.

         17             COMMISSIONER MARSHALL:  Yes, it is indeed,

         18        Commissioner, and I have no explanation.  I didn't

         19        notice that and I should have.  This information I

         20        obtained from the Department of Education and the

         21        National Center for Education Statistics.  I have no

         22        explanation; they are entirely inconsistent.

         23             COMMISSIONER MORSANI:  I took my little orange

         24        pen and arrived at that because I want to support the

         25        proposal, but I am -- also, are the class sizes


          1        correct?  We hear all of the data saying, and we were

          2        just looking at -- going back to those two sheets,

          3        then, we are saying that the average class size is

          4        17.4 or 16.53.  So I'm wondering if that's for the

          5        whole state, and yet we have been given information

          6        that it's 35 or something.  What is the right class

          7        size in the State of Florida?  I don't have any

          8        children in these -- in school.  I just find this

          9        data -- something is wrong.

         10             COMMISSIONER MARSHALL:  I understand,

         11        Commissioner Morsani.  I can answer that question

         12        without referencing any of this data because I

         13        followed that closely for years.  The average class

         14        size in Florida is now about 17.5 or 17.6.  It was 20

         15        when I first began to look at this information to be

         16        involved 15 or 20 years ago.  The 35 figure you hear

         17        about may apply to some school districts as an average

         18        class size for some grades.  But the average, the

         19        average class size for the state is about 17.5.

         20             COMMISSIONER MORSANI:  Well, it's very

         21        encouraging, but I just wanted to make sure when I saw

         22        the other thing -- I just didn't want to --

         23             COMMISSIONER MARSHALL:  We're in a much more

         24        favorable condition in that regard than most other

         25        states.


          1             CHAIRMAN DOUGLASS:  Commissioner Freidin.

          2             COMMISSIONER MORSANI:  Now, I'm sorry, that is

          3        only a couple of questions, I am not through yet, sir.

          4        I apologize Commissioner Freidin.  The next question,

          5        Commissioner Marshall, if I understood the concerns

          6        that a lot of us had was to make sure that we didn't

          7        have an abnormal number -- we don't want to create

          8        what we had in 1955.

          9             Now, so on the financial side then if we are

         10        spending $5171 per student today or $6,000 per student

         11        today, if we were to break up and have these separate

         12        districts of 75,000 students but each student would

         13        still, regardless of the tax base in that district,

         14        i.e., if it was in a ghetto part of town or versus an

         15        affluent part of town, that the same dollars would be

         16        spent on each student regardless where these schools

         17        or students were living.  Do we make that assumption?

         18             COMMISSIONER MARSHALL:  We can indeed,

         19        Commissioner.  The same number of dollars would be

         20        earned by each student and would travel to that school

         21        in which that student is enrolled.  The actual

         22        expenditures, of course, depend upon the

         23        administrators.  But the earnings per student would

         24        remain the same.

         25             COMMISSIONER MORSANI:  So we don't have any


          1        disparaging -- any problem in the financial arena?

          2             COMMISSIONER MARSHALL:  That's correct, sir.

          3             COMMISSIONER MORSANI:  Thank you, Commissioner.

          4             CHAIRMAN DOUGLASS:  All right.  Commissioner

          5        Freidin was next.  You're next, Commissioner Mathis.

          6             COMMISSIONER FREIDIN:  I wanted to ask a question

          7        of Commissioner Marshall and I then wanted to make a

          8        comment.  Commissioner Marshall, is there anything

          9        that would be accomplished by this that school

         10        districts can't do now already?  It seems to me

         11        like -- I mean, I must admit that I'm not a well

         12        educated -- I'm not well educated in the field of

         13        education but that I understand that in Dade County

         14        the school -- the Dade County district is divided into

         15        divisions, and I understand that certain

         16        responsibilities are actually divvied up and given out

         17        to the heads of those divisions.  And I don't -- not

         18        even knowing what the responsibilities are that each

         19        division head has, I'm wondering why you couldn't

         20        accomplish this by having a school district that then

         21        makes the decision on its own to go divide up into

         22        divisions and do whatever, you know, whatever you're

         23        trying to achieve here.

         24             COMMISSIONER MARSHALL:  Commissioner, I think

         25        the -- there are a couple of answers to that, but


          1        maybe the most basic answer is that there still is one

          2        school board.  The policy for all of the schools in a

          3        district is established by the school board.  They

          4        play a very important role in deciding -- determining

          5        what happens in those schools.  When there is one

          6        school board, that school board, in Dade County it's

          7        nine people, must respond to the families of 300 and

          8        nearly 50,000 students.  And if you're going to, as a

          9        parent, effect a change in the nature of the schools,

         10        you almost have to go to the school board because

         11        that's where school policy is established, that's the

         12        essence of the neighborhood concept, the concept of

         13        neighborhood schools.

         14             And when you don't have a school board in charge

         15        of a manageable number of students, it's pretty hard

         16        for a parent to get to that school board and be heard.

         17        I think that's the essential question.  The other

         18        answer to it may very well be that the superintendent

         19        is still the administrator in charge of all the

         20        schools in the district, and if he or she divides the

         21        district up into smaller units, it's still under the

         22        control of one administrative officer and that has

         23        meaning in terms of variability, of innovation, of

         24        trying new things.  And I think it's just more

         25        difficult to do where there is one administrator in


          1        charge of 350,000 students.

          2             COMMISSIONER FREIDIN:  Is there any reason

          3        currently that the school board or the school

          4        superintendent could not delegate responsibility to

          5        smaller units?

          6             COMMISSIONER MARSHALL:  I think there is no

          7        reason why they could not, no.

          8             COMMISSIONER FREIDIN:  And that would be true of

          9        any function that the school board performs?

         10             COMMISSIONER MARSHALL:  I think that's true, yes.

         11             CHAIRMAN DOUGLASS:  Commissioner Marshall, before

         12        we go further, Commissioner Butterworth had left an

         13        amendment and he's not here to move it; are you

         14        familiar with it?

         15             COMMISSIONER MARSHALL:  I am if it's the

         16        amendment that I think it is.  I thought that it had

         17        been adopted by the Education Committee, if it's the

         18        amendment I think it is.

         19             CHAIRMAN DOUGLASS:  It's not part of the proposal

         20        that's in my book.  Excuse me, Commissioner Freidin.

         21        He has -- Commissioner Butterworth had an amendment to

         22        propose but isn't here to propose it, so.

         23             COMMISSIONER MARSHALL:  Yes, I asked Commissioner

         24        Butterworth about that yesterday before he left, and

         25        he seemed to be of the opinion too that it had been


          1        included.  The essence of it was that capital outlay,

          2        the bonding and all that that implies, would be

          3        included --

          4             CHAIRMAN DOUGLASS:  One of the major differences

          5        was in how the, instead of saying you may create a

          6        special -- maybe create to say "shall" be create these

          7        commissions.  And it had some other language in it

          8        that seems to be a little different.  It was more like

          9        mandatory than directly.  All right.  The amendment,

         10        at least, and I hate to do that but I didn't realize

         11        that it wasn't being presented.  Commissioner Freidin,

         12        did you want to speak on this, or did you have other

         13        questions?

         14             COMMISSIONER FREIDIN:  I was in the middle of

         15        talking on the proposal.  If I should sit down now and

         16        get up later, I will be happy --

         17             CHAIRMAN DOUGLASS:  You stand there because I

         18        want to make sure I don't forget you this time.  Stay

         19        in the line of fire for me.

         20             COMMISSIONER MARSHALL:  Mr. Chairman, where do we

         21        stand?

         22             CHAIRMAN DOUGLASS:  Well, I just wanted to know

         23        if this had any -- what we should do.

         24             COMMISSIONER MARSHALL:  Mr. Buzzett has just

         25        handed me, Mr. Chairman, a copy of the Butterworth


          1        amendment that includes all of the, yes, the initial

          2        proposal, as amended by Commissioner Butterworth, and

          3        this includes what has been intended, what I've

          4        intended and what I think the committee endorsed all

          5        along.  So with your permission, I'll move the

          6        adoption of the Butterworth amendment now.

          7             CHAIRMAN DOUGLASS:  What she tells me happened in

          8        the committee was this went to the committee, the

          9        committee approved it, made it a part of the

         10        amendment, then they defeated it 3-3, as you reported,

         11        so it never came out with this in it.

         12             COMMISSIONER MARSHALL:  Then, Mr. Chairman, I

         13        would like to move, if it's appropriate, the adoption

         14        of the Butterworth amendment.

         15             CHAIRMAN DOUGLASS:  It's amendment number one

         16        which we'll read offered by Commissioner Butterworth

         17        and Commissioner Marshall since Commissioner

         18        Butterworth isn't here, and it's on the desk.  And I'd

         19        ask that it be read.

         20             READING CLERK:  By Commissioner Butterworth, on

         21        Page 1, Line 14, through Page 2, Line 4, "Delete those

         22        lines and insert lengthy amendment."

         23             COMMISSIONER SUNDBERG:  Mr. Chairman, a point of

         24        order.

         25             CHAIRMAN DOUGLASS:  Yes, Commissioner Sundberg.


          1             COMMISSIONER SUNDBERG:  Didn't we just adopt an

          2        amendment that set the limit at 75,000 students as

          3        opposed to 45,000, and this is contrary to that?

          4             CHAIRMAN DOUGLASS:  We sure did.  We sure did.

          5             COMMISSIONER SUNDBERG:  Who has drafted the

          6        amendment?

          7             COMMISSIONER RILEY:  Starting back again, we

          8        fixed that problem.

          9             CHAIRMAN DOUGLASS:  Commissioner Riley has fixed

         10        that problem.

         11             COMMISSIONER RILEY:  And changed the line number

         12        to Line 19.

         13             COMMISSIONER SUNDBERG:  Has it been fixed in this

         14        amendment?

         15             COMMISSIONER RILEY:  No, that amendment was --

         16             CHAIRMAN DOUGLASS:  Would you move to amend this

         17        amendment to conform with the --

         18             COMMISSIONER SUNDBERG:  I will indeed, I will

         19        indeed for the purpose of considering this amendment.

         20        That doesn't mean I'm going to support it.

         21             CHAIRMAN DOUGLASS:  We now have an amendment to

         22        the amendment on the table by Commissioner Riley.

         23        We'll read it, please.

         24             READING CLERK:  By Commissioner Riley, on Page 1,

         25        Line 19, "Delete the number 45,000 and insert 75,000."


          1             CHAIRMAN DOUGLASS:  And that's to the amendment

          2        that's on the table, on the desk.  All right.

          3        Everybody in favor of the amendment, signify by saying

          4        aye.  Opposed?

          5             (Verbal vote taken.)

          6             CHAIRMAN DOUGLASS:  It carries.  Now we're on it

          7        the way, Commissioner Marshall, that you thought it

          8        came out of committee.  And, Commissioner Freidin, you

          9        had the floor when we started all of this.  You're on.

         10        You have the floor.

         11             COMMISSIONER FREIDIN:  The --

         12             CHAIRMAN DOUGLASS:  Oh, are you ready to take

         13        action on the amendment as amended?  Do you want to

         14        debate?

         15             COMMISSIONER BARKDULL:  I do not have the

         16        Butterworth amendment in front of me.

         17             CHAIRMAN DOUGLASS:  Hasn't it been passed out?

         18             COMMISSIONER BARKDULL:  I understood the Chair to

         19        say the Butterworth amendment made the division

         20        mandatory.  The one that's been just handed me still

         21        has it permissive.

         22             CHAIRMAN DOUGLASS:  All right.  The Butterworth

         23        amendment that we're on, as I read it, it says, "In

         24        order to divide a county school district under this

         25        provision, notwithstanding any other provisions of the

                   DIVISION OF ADMINISTRATIVE HEARINGS (850) 488-9675


          1        Constitution, a commission made up of residents of the

          2        county shall be created by special law to draw

          3        district boundary lines, allocate assets, and provide

          4        for the contractual obligations, debts and bonded

          5        indebtedness of the school district, all of which

          6        shall be subject to review by approval of the circuit

          7        court for compliance with state and federal law," et

          8        cetera.

          9             That is different from what we had before us

         10        before, and this was understood by Commissioner

         11        Marshall to have been adopted in committee, but for

         12        the reasons that it was explained, it was not.  So now

         13        it has been adopted with the amendment with the 75,000

         14        replacing the 45,000 figure.  And we're on this

         15        amendment as amended right now.

         16             COMMISSIONER BARKDULL:  Thank you.


         18             CHAIRMAN DOUGLASS:  Okay Commissioner Barton,

         19        question?

         20             COMMISSIONER BARTON:  Mr. Chairman, on Line 20 it

         21        says the county may be divided.

         22             CHAIRMAN DOUGLASS:  That's correct.

         23             COMMISSIONER BARTON:  And then where it's talking

         24        about shall, it's in order to divide they shall.

         25             CHAIRMAN DOUGLASS:  It also says, "May be


          1        divided" in the first sentence of the existing one.

          2        This doesn't mean they have to do it, but it says in

          3        order to do it they have to have this mandatory

          4        commission.

          5             COMMISSIONER BARTON:  But that's not the enacting

          6        point of it.  Line 20 is where it may be divided, it

          7        seems to me.

          8             CHAIRMAN DOUGLASS:  No, no, no.  The original

          9        proposal provided that it may be divided.  It's up to

         10        the counties, it's not up to the district, it's not up

         11        to anybody else.  And then if they do vote to do that,

         12        then they shall, under this amendment, create the

         13        commission as provided there.  It shall be created by

         14        special law.  Is that your understanding, Commissioner

         15        Riley, that these may -- that where that may be done

         16        is at the very beginning, they don't have to do it.

         17        But if they do it, then they shall do it in this

         18        matter?

         19             COMMISSIONER RILEY:  Right, if they decide

         20        they'll look at it, this is the procedure that they

         21        have to go through to do it, but they certainly don't

         22        have to.

         23             CHAIRMAN DOUGLASS:  Okay.  All right.  Now,

         24        Commissioner Freiden, we're going to get you back into

         25        the --


          1             COMMISSIONER FREIDIN:  Thank you, Mr. Chairman.

          2             CHAIRMAN DOUGLASS:  I don't know.  She may be

          3        speaking on the amendment.  Are you speaking on the --

          4             COMMISSIONER FREIDIN:  Well, I think that I can

          5        talk on the amendment or I can talk on -- it's all the

          6        same issue.

          7             CHAIRMAN DOUGLASS:  Well, all in favor of the

          8        amendment, say aye.  Opposed?

          9             (Verbal vote taken.)

         10             CHAIRMAN DOUGLASS:  Now we got it right where you

         11        can debate it on its merits.

         12             COMMISSIONER FREIDIN:  Commissioners, I would

         13        like very much for us to find something to do about

         14        the poor state of affairs that Mr. Marshall has so

         15        eloquently shown to us in the packet and that he gave

         16        us and in the talk that he has given to us, because it

         17        is a very -- it's almost shocking to see how bad we're

         18        doing in education in the State of Florida.

         19             I'm not convinced, however, that this proposal

         20        will do anything to get us where we need to be that

         21        can't be done already.  And for that reason, I will

         22        vote no.  But I have another reason as well.  For

         23        those of you who are listening, who are listening to

         24        the questions that I was asking, I --

         25             CHAIRMAN DOUGLASS:  She is speaking in opposition


          1        to this, so if you will listen please.

          2             COMMISSIONER FREIDIN:  For those of you who were

          3        listening, you know where I was headed with that, and

          4        for those of you who weren't listening, I wanted to

          5        repeat it.  It seems to me that this is something

          6        that, if our goal is to create smaller educational

          7        units where families and parents can have more input

          8        and where localities can take ownership of the

          9        education that's provided to their children, I think

         10        that school districts really can do that now, and I

         11        think that's been done in other places.  And I know

         12        that the City of New York did it with some success and

         13        also some very major failure.  And in the end, I think

         14        the City of New York, and this is probably debatable,

         15        has found that, in fact, centralized leadership really

         16        was very important, that things happen when you divide

         17        large counties into small areas, that while it might

         18        work in some areas, that it doesn't work in all areas.

         19             And that leads me to my second concern which

         20        probably is my even greater concern here, and that is

         21        in a major metropolitan area I think that there is a

         22        grave danger that what will happen is that the

         23        districts, the divisions of the county, will be made

         24        based on racial, ethnic and economic lines because

         25        that's generally people -- how people live.  And I


          1        think that it would be a natural way of doing it.  I

          2        think it would be a grave danger.

          3             I think that we may end up with an educational

          4        system that goes back to the old concept of separate

          5        but equal.  I hope that it would be equal, but I would

          6        really hate very much for it to be separate.  With

          7        that said, I will vote against this and urge you to do

          8        the same.

          9             CHAIRMAN DOUGLASS:  Okay.  Commissioner Mills.

         10             COMMISSIONER MILLS:  Mr. Chairman, will

         11        Commissioner Marshall yield for a question?

         12             CHAIRMAN DOUGLASS:  First thing I want to do is

         13        call for a quorum.

         14             (Quorum taken and recorded electronically.)

         15             CHAIRMAN DOUGLASS:  I make the quorum.

         16        Commissioners, I want to ask you this though.  Are we

         17        going to be taking up something as important as this

         18        with 17 members missing or should we take up anything

         19        else for the rest of the day?

         20             We have -- it's unfair one way or the other, it

         21        could be, depending on how the votes arrive and then

         22        we have to come back on reconsideration and consider

         23        all these things again.  We can't make people do their

         24        duty, we know that, and they all have or have had

         25        some -- those that have had to leave have stated what


          1        were compelling reasons.

          2             On the other hand, we knew we had this meeting;

          3        we know we have got to complete our work.  I think if

          4        we can only barely muster 21, including the Chairman,

          5        that as important an item as this is, Commissioner

          6        Marshall, that we probably should not -- or we should

          7        recognize, even if we pass it, that it's not going to

          8        get a sufficient number of votes to ever put it on the

          9        ballot; in fact, we don't have that many people here.

         10        So we have less than three-fifths of the body.

         11             I'm willing to do whatever anybody wants to do,

         12        but it seems to me it's not fair to you that are here

         13        to have to pass on these full-well knowing we may have

         14        to come back and sit through it all again.  Now I'd

         15        entertain a motion to adjourn.  Well, let's let our

         16        rules chairman -- and he's not even here, he sneaked

         17        out.  He is here.  This shows I don't have eyes in the

         18        back of my head anymore.  I used to do a lot better

         19        when I was younger.  Commissioner Barkdull, as the

         20        rules chairman, what's your call on this?

         21             COMMISSIONER BARKDULL:  I think the sentiment is

         22        that we recess at this time.  I do not want to cut off

         23        Commissioner Marshall if he would like to proceed to a

         24        vote on this.  I would say that we would entertain a

         25        motion to recess at the conclusion of the matter


          1        that's presently before the body.

          2             CHAIRMAN DOUGLASS:  Commissioner Marshall, what's

          3        your pleasure?

          4             COMMISSIONER MARSHALL:  My choice would be, sir,

          5        to recess and to consider this when there are more

          6        members of the Commission present.  I think it's too

          7        important to consider with this limited number.

          8             CHAIRMAN DOUGLASS:  All right.  Then Commissioner

          9        Connor has made a motion to, I guess -- how would a

         10        motion be, Commissioner Barkdull?

         11             COMMISSIONER BARKDULL:  Well, it would be to

         12        recess until our next scheduled meeting at 1:00 on

         13        Monday, February 9.  I would ask that before they put

         14        that motion, that we have an opportunity for some

         15        announcements and whatnot.

         16             CHAIRMAN DOUGLASS:  Very well.  Proceed with the

         17        announcements.  A motion to adjourn is not debatable.

         18             COMMISSIONER CONNOR:  I withdraw the motion

         19        pending announcement, not the least of which would be

         20        I'd like to withdraw Proposal 178, Mr. Chairman.

         21             CHAIRMAN DOUGLASS:  We'll let you do that right

         22        now.

         23             COMMISSIONER CONNOR:  Valid access issue and

         24        that's been resolved.

         25             CHAIRMAN DOUGLASS:  Without objection, 178 is


          1        withdrawn.  Now, Commissioner Barkdull.

          2             COMMISSIONER BARKDULL:  Does anybody else have

          3        anything they want to withdraw?  For the information

          4        of the Commission, we're not scheduled to convene at

          5        1:00 p.m. on Monday, February 9th.  I've been asked,

          6        and I'm going to recommend to the Rules Committee,

          7        that Proposition 107 which relates to parental

          8        consent, Commissioner Connor, I'm talking about 107,

          9        parental consent, I'm recommending to the Rules

         10        Committee would be the first item up that afternoon.

         11        So for the benefit of everybody that knows it.

         12             And secondly, it would be the policy of your

         13        Rules Chairman, unless overruled by the Chair, to call

         14        a point of order every time somebody wants to move or

         15        temporarily pass a matter which takes a waiver of the

         16        rules, which takes two-thirds of all the Commission.

         17             So when we get back in here, please be prepared

         18        to go to work, and if you see some of those that are

         19        not in here now, please advise them of the sentiment

         20        that I have just stated because we only have nine --

         21        not full nine working days, nine partial days left to

         22        complete this work before we have to give up this

         23        chamber and this excellent support staff we have.

         24             So we've got to start moving some of these

         25        proposals.  I have nothing further unless there --


          1             CHAIRMAN DOUGLASS:  Well, do we have to announce

          2        for the record we're deferring Proposal 40 and the

          3        continuation of it will be the first order of

          4        business, then the first proposal taken up, new

          5        proposal, will be the one you mentioned.

          6             COMMISSIONER BARKDULL:  Well, yeah, and we also

          7        have some motions for reconsideration that were made

          8        and were left pending that will come up.

          9             CHAIRMAN DOUGLASS:  That's true.

         10             COMMISSIONER BARKDULL:  They will be, really, the

         11        first item.  And then we'll finish 40, and the first

         12        new proposal we will take up will be 107.

         13             CHAIRMAN DOUGLASS:  Now, something else -- oh,

         14        the journal didn't reflect that Commissioner Scott had

         15        been appointed to the Style and Drafting Committee, so

         16        I make that announcement again so it will be included

         17        in this journal.  All right.  Is there anything

         18        further?

         19             COMMISSIONER BARKDULL:  I move that we recess

         20        until 1:00 p.m., Monday, February 9th.

         21             CHAIRMAN DOUGLASS:  Very good.  Thank all of

         22        you-all for staying, and when you see those who are

         23        not here, chide them, fiercely chide them.

         24             (Session concluded.)



          1                           CERTIFICATE


          3   STATE OF FLORIDA:

          4   COUNTY OF LEON:

                        WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY and
          6   MONA L. WHIDDON, court Reporters, certify that we were
              authorized to and did stenographically report the foregoing
          7   proceedings and that the transcript is a true and complete
              record of our stenographic notes.

          9             DATED this ______ day of ____________, 1998.


         12                      JULIE L. DOHERTY, RPR


         14                      _________________________________
                                 KRISTEN L. BENTLEY

         17                      MONA L. WHIDDON
                                 COURT REPORTERS
         18                      DIVISION OF ADMINISTRATIVE HEARINGS
                                 1230 APALACHEE PARKWAY
         19                      TALLAHASSEE, FLORIDA  32399-3060
                                 (850) 488-9675