CAO 03-03 Travel/Per Diem Exp.TO:
FROM:
SUBJECT:
CITY OF MIAMI BEACH
Jorge Gonzalez
City Manager
Murray H. Dubb~nll
City Attorney
Debora J. Tumer'~
First Assistant City Attorney
Travel and Per Diem Expenses for Florida Public Officers and Employees
CMO#1-2/03
CAO #03-03
DATE: March 10, 2003
This is in response to your request for a legal opinion with regard to the following
inquiry:
Question:
Whether the City of Miami Beach should comply with the
provisions in Section 112.061(6) of the Florida Statutes with
regard to per diem and subsistence allowances.
Short Answer:
Yes. The most recent opinion from the Attorney General's Office
on this matter, despite a previous opinion contrary thereto, opines
that municipalities may not act in a manner inconsistent with the
per diem and subsistence rates set forth in Section 112.061(6) of
the Florida Statutes. Op. Att'y Gen. Fla. 2003-01 (2003). (See
Exhibit A). While the opinions of the Attorney General are not
legally binding, they are persuasive and entitled to great weight in
construing the laws of the State. Thus, unless and until AGO
2003-01 is altered, negated by proposed legislation, or otherwise
construed by a court, it should be followed.
Discussion:
Although opinions of the Attorney General do not constitute binding authority on the
courts of Florida, such opinions are considered persuasive and are entitled to great weight in
construing the law of this State. See Palm Beach County v. Hudspeth, 547 So.2d 147 (Fla. 4th
DCA 1989) and Beverly v. Division of Beverage of the Department of Business Regulation, 282
So. 2d 657 (Fla. 1st DCA 1993). In Attorney General Opinion 2003-01, dated January 3, 2003,
the Attorney General reversed the position, previously set forth in AGO 1974-18, that Home
Rule Powers allow municipal governments to enact ordinances providing for travel and
subsistence allowances different than those fixed in Section 112.061(6) of the Florida Statutes.
In the most recent pronouncement from the Attorney General's Office, the "uniform maximum
rates" set forth in Section 112.061(1)(a) are determined to be just that and the interpretation
previously in place for almost 30 years has been revised. Now, according to the Attorney
General, the setting of per diem rates is preempted by the State such that Home Rule Powers do
not apply and do not allow a local govemment to legislate on this matter.
Unless and until corrective legislation is adopted to negate the effect of AGO 2003-01,
the Attorney General alters this Opinion, or a court gives a different interpretation on this issue,
it is recommended that the rates established in Section 112.061(6) be followed. It is noted that in
the current 2003 Session of the Florida Legislature, corrective legislation has been proposed.
Specifically, Senate Bill 1426 has been introduced which amends the Municipal Home Rule
Powers Act by authorizing municipalities to establish their own per diem and travel allowance
policies. This Bill provides for a retroactive application as of January I, 2003. (See Exhibit B).
Thus, if the proposed legislation is passed, the practical effect will be that AGO 2003-01 never
existed. In the interim period while Bill 1426 is pending and AGO 2003-01 is in effect, any per
diem and travel expenses currently pending for reimbursement could either be paid pursuant to
Section 112.061(6), and adjusted accordingly if Bill 1426 passes, or held for payment until final
action is taken on Bill 1426 in this Legislative Session.
CCi
Mayra Diaz-Buttacavoli
Assistant City Manager
F:~atto\TUPdq\CAO\Per diem and travel allowances -2003.doc
Page 1 of 5
Florida Attorney General
Advisory Legal Opinion
Number: AGO 2003-01
Date: January 3, 2003
Subject: Municipalities, per diem and travel expenses
Mr. James C. Brady
Fort Lauderdale City Attorney
501 Northeast 8th Street
Fort Lauderdale, Florida 33304
RE: MUNICIPALITIES-OFFICERS AND EMPLOYEES-TRAVEL EXPENSES-PER DIEM-
expense accounts for municipal officers and volunteers for per diem
expenses, s. 112.061, Florida Statutes.
Dear Mr. Brady:
You have requested my opinion on substantially the following
question=
Is a municipality authorized to provide an expense account to its
city officials and to citizen volunteer members without a limitation
on the per diem rates established pursuant to section 112.061(6),
Florida Statutes?
In sum:
Section 112.061(6), Florida Statutes, applies to municipalities and
controls the maximum rates of per diem and subsistence allowance to
be paid to officers, employees or others authorized to act on behalf
of the municipality. While a municipality may legislate on the
subject of per diem and subsistence allowances for governmental
travelers, the rates established by section 112.061(6), Florida
Statutes, may not be exceeded.
Section 112.061, Florida Statutes, governs the per diem and travel
expenses of public officers, employees and authorized persons in this
state. The enactment of section 112.061 represents the Legislature's
efforts to establish uniform maximum rates and limitations, with
certain exceptions, applicable to public officers, employees, and
authorized persons whose travel expenses are paid by a public agency.
[1] Municipalities are included within the scope of the act. [2]
To ensure uniformity, the statute provides that section 112.061,
Florida Statutes, will prevail over any conflicting provisions in a
http://my~rida~ega~c~m/ag~nsf/printview/B63E933296B4~CF985256CA3~6~F7~?~ '~/q/'mn~
general law to the extent of the conflict, unless the general law
contains a specific exemption. However, section 112.061(1) (b) 2.,
Florida Statutes, expressly states that "[t]he provisions of any
special or local law, present or future, shall prevail over any
conflicting provisions in this section, but only to the extent of the
conflict." A "local law" does not refer to local codes or ordinances,
but to enactments of the Legislature. [3]
Section 112.061(6), Florida Statutes, provides the rates at which
travelers may be reimbursed for official travel. The statute
provides:
"(a) All travelers shall be allowed for subsistence when traveling to
a convention or conference or when traveling within or outside the
state in order to conduct bona fide state business, which convention,
conference, or business serves a direct and lawful public purpose
with relation to the public agency served by the person attending
such meeting or conducting such business, either of the following for
each day of such travel at the option of the traveler:
1. Fifty dollars per diem; or
2. If actual expenses exceed $50, the amounts permitted in paragraph
{b) for meals, plus actual expenses for lodging at a single-occupancy
rate to be substantiated by paid bills therefor.
When lodging or meals are provided at a state institution, the
traveler shall be rei~tbursed only for the actual expenses of such
lodging or meals, not to exceed the maximum provided for in this
subsection.
(b) All travelers shall be allowed the following amounts for
subsistence while on Class C travel on official business .
1. Breakfast .............................. $3
2. Lunch ................................... $6
3. Dinner ................................. $12"
These rates are established statutorily and apply to "[a]11
travelers."
A "traveler" for purposes of section 112.061 is defined in (2){f) as
"[a] public officer, public employee, or authorized person, when
performing authorized travel." An "authorized person" is defined as:
"1. A person other than a public officer or employee as defined
herein, whether elected or commissioned or not, who is authorized by
an agency head to incur travel expenses in the perfo~sL~ance of
official duties.
2. A person who is called upon by an agency to contribute time and
services as consultant or adviser.
3. A person who is a candidate for an executive or professional
position."[4]
hnp://myfl~rida~ega~.c~m/ag~.nsf/printview/B63E933296B4~CF985256CA3~66F7B~?~p... 3/5/2003
These definitions apply equally to state and local governmental
travelers. [5] Citizen volunteers would appear to come within the
scope of the te~ "authorized person" assuming their activities fit
within the scope of the definition above.
The municipal home rule powers act gives broad home rule powers to
municipalities. Pursuant to section 166.021(3), Florida Statutes, the
legislative body of a municipality has the power to enact legislation
concerning any subject upon which the state Legislature may act
except:
"(a) The subjects of annexation, merger, and exercise of
extraterritorial power, which require general or special law pursuant
to s. 2(c), Art. VIII of the State Constitution;
(b) Any subject expressly prohibited by the constitution;
(c) Any subject expressly preempted to state or county government by
the constitution or by general law; and
(d) Any subject preempted to a county pursuant to a county charter
adopted under the authority of ss. l(g), 3, and 6(e), Art. VIII of
the State Constitution."
Thus, if section 112.061, Florida Statutes, were dete~ined to
constitute a preemption by the state of the subject of travel
expenses and per diem, the provisions of the statute would prevail
over any local legislation adopted to regulate this area.
A previous opinion of this office however, has concluded that section
112.061, Florida Statutes, does not constitute an express preemption
to the state of regulation of governmental travel. [6] Rather, the
statute itself provides that it establishes "unifo~L~ maximum rates
· applicable to all public officers, employees, and authorized
persons whose travel expenses are paid by a public agency."[7] (e.s.)
Thus, while local governments may legislate on the subject of per
diem and subsistence allowances for governmental travelers, the rates
established by section 112.061(6) may not be exceeded. [8]
Therefore, it is my opinion that section 112.061(6), Florida
Statutes, applies to municipalities and controls the maximum rates of
per diem and subsistence allowance to be paid to officers, employees
or others authorized to act on behalf of the municipality. While a
~unicipality may adopt legislation implementing these maximum rates
locally, it may not act in a manner inconsistent with the provisions
of section 112.061(6), Florida Statutes. [9]
While this office has recently opined in Attorney General's Opinion
2002-65 that section 112.061(11), Florida Statutes, requiring the use
of vouchers by state officers and employees does not impose a
requirement to use state vouchers on municipalities, that opinion
should not be understood to conclude that other provisions of section
112.061 do not apply to municipalities.
http://my~~rida~ega~~c~m~ag~~ns~/printview/B63E933296B4~CF985256CA3~~66F7B~?~p... 3/5/2003
Sincerely,
Richard E. Doran
Attorney General
RED/tgh
[1] Section 112.061(1)(a), Fla. Stat.
[2] Section 112.061(2) (a), Fla. Stat., defines an "agency" or "public
agency" as "[a]ny office, department, agency, division, subdivision,
political subdivision, board, bureau, commission, authority,
district, public body, body politic, county, city, town, village,
municipality, or any other separate unit of government created
pursuant to law." (e.s.)
[3] See, Art. X, s. 12(g), Fla. Const.; Advisory Opinion to Governor,
22 So. 2d 398 (Fla. 1945) (ordinance of noncharter county not a "law"
within the purview of s. 5[c], Art. II, State Const.); Op. Att'y Gen.
Fla. 84-39 (1984) (municipal ordinance not a "law" within the meaning
of s. 8, Art. I, State Const.); Op. Att'y Gen. Fla. 79-109 (1979)
(governing body of charter county prohibited in absence of statutory
authorization from providing by ordinance for imposition of civil
penalties by agencies of county); and Broward County v. Plantation
Imports, Inc., 419 So. 2d 1145 (Fla. 4th DCA 1982) (holding that
provisions of a county ordinance authorizing assessment of penalties
by county agency was unconstitutional, and agreeing with conclusion
reached in Op. Att'y Gen. Fla. 79-109 (1979).)
[4] Compare, s. 112.061(11), Fla. Stat., relating to travel
authorization and voucher fo£~s which specifically applies only to
"state officers and employees and authorized persons" and Op. Att'y
Gen. Fla. 02-65 (2002).
[5] Section 112.061(2) (e), Fla. Stat.
[6] See, Op. Att'y Gen. Fla. 74-18 (1974).
[7] Section 112.061(1) (a), Fla. Stat.
[8] A legislative direction as to how a thing shall be done is, in
effect, a prohibition against its being done in any other way. Alsop
v. Pierce, 19 So.2d 799, 805-806 (Fla. 1944); Dobbs v. Sea Isle
Hotel, 56 So.2d 341, 342 (Fla. 1952); Thayer v. State, 335 So.2d 815,
817 (Fla. 1976).
http://my~~rida~ega~.c~m/ag~.nsf/prin~viexv/B63E933296B4~CF985256CA3~~66F7B~?~p... 3/5/2003
[9] Cf., Op. Att'y Gen. Fla. 92-67 (1992) (charter county required to
£ollow provisions of section 112.06117], Fla. Stat.)
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aca$ion->Bills: flsenate.gov Page 1 of 3
flsenate.gov
Bills Calendars 3ournals
Senate Bill sb1426
Se. ltors I Center i Statutes & ~ L°l)bYIs!
CommiRees~ IIIfornln.O. ~.Co.sUtutte. ~LJnformation'
Citator Search Appropriations Redistricting
CODZNG: Words ,Jt-~eke~ are deletions; words underlined are additions.
Florida Senate - 2003 SB 1426
By Senator Posey
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24-1092-03
A bill to be entitled
An act relating to municipal per diem and
travel expenses; amending s. 166.021, F.S.;
authorizing municipalities to provide for per
diem and travel expenses of its officials,
officers, employees, and authorized persons,
notwithstanding s. 112.061, F.S.; providing for
retroactive application; providing an effective
date.
WHEREAS, the Municipal Home Rule Powers Act, chapter
166, Florida Statutes, provides that the governing body of
each municipality has the power to enact legislation
concerning any subject matter upon which the Legislature may
act, and
WHEREAS, the Florida Attorney General', in AGO 1974-18,
stated that municipalities, under the Municipal Home Rule
Powers Act, have the home rule powers to enact per diem and
travel allowances that vary from those specified in section
112.061, Florida Statutes, and
WHEREAS, numerous municipalities in the state have
relied on the grant of home rule powers and AGO 1974-18 to
enact reasonable per diem and travel allowances as determined
htt~:/A~xn~v, flsenate, uov/c ~,i-birdview r)aee.nl?Tab=~eq~inn,5 Rnhm,-.,,= lX, VT= 13,e, U;I,.=*~, ~
session->Bills: flsenate.gov Page 2 of 3
24 by the governing body of the municipality, and
25 WHEREAS, the Florida Attorney General, in AGO 2003-01,
26 has essentially reversed the opinion set forth in AGO 1974-18
27 and has now stated that section 112.061, Florida Statutes,
28 applies to municipalities and controls the maximum rate of per
29 diem and other allowances paid to officers, employees, or
30 others authorized to act on behalf of the municipality, and
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COD/NO: Words st-~-'u~" are deletions; words %1~.[3e_~ are additions.
Florida Senate - 2003
24-1092-03
SB 1426
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1 WHEREAS, AGO 2003-01 clearly violates the intent of the
2 Municipal Home Rule Powers Act, and places municipalities that
3 have relied on AGO 1974-18 into the position of having to
4 repeal their policies on reasonable per diem and travel
5 allowances in order to comply with AGO 2003-01, NOW,
THEREFORE,
Be It Enacted by the Legislature of the State of Florida:
Section 1. Subsection (10) is added to section
166.021, Florida Statutes, to read:
166.021 Powers,..-
travel expenses of public officprs, employees, and authorized
persons set forth in s. 112.061, the ~overnJnq body of a
municipality may provide for ~er diem and travel expenses of
~ssion->Bills: flscnate.gov Page 3 of 3
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diem and ti'aye.] cxpeP_.tes provi6ed by a muni. cJp_LZ!ittv on January
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s. 112.061.
Section 2. This act shall taka effect upon becoming a
la~ and shall apply retroactively to January 1, 2003.
SENATE SUMMARY
Authorizes the governing body of a municipality to
provide for per diem and travel expenses of its
officials, officers, employees, and authorized persons
notwithstanding s. 112.06.
2
CODING: Words £tric,u~" are deletions; wDrds )!PQ~3J!~!~.d are additions.
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