from The Florida Bar News
How big of a deal is paying $265 Florida Bar fees for government lawyers?
“It is very important, particularly for our recent law school graduates who are making the minimum, which is already well below what private sector lawyers make,” said Mary Ellen Clark, chair of the Bar’s Government Lawyer Section and an assistant attorney general in administrative law.
“Often, they are living paycheck to paycheck with heavy student loans. And $265 out of their paychecks, something they haven’t budgeted for, is very difficult.”
For many years, state government lawyers considered their agencies paying their Bar fees as part of their compensation, and when that changed in the final days of the 2010 legislative session, it smacked of a pay cut.
Encouraging news came Aug. 18 from Second Circuit Judge James Shelfer, who granted a petition for declaratory judgment sought by the Florida Prosecuting Attorneys Association, on behalf of 20 state attorneys and their estimated 1,800 assistant state attorneys.
The Florida Public Defender Association, on behalf of 20 public defenders and their more than 900 assistant public defenders, and the State Employees Attorneys Guild are intervening plaintiffs.
In the 2010 legislative session’s final days, this proviso language was inserted into a budget bill: “No state agency may expend funds provided in this act for bar dues.”
Judge Shelfer agreed that proviso language “is directly contrary to section 216.345, Florida Statutes, in that it eliminates the discretion of the agency head to utilize state funds to pay for Bar dues out of its allocated state funds. Therefore, the proviso cannot stand and must be stricken.
“The effect of this court’s judgment is not to require any component of state government to pay the Bar dues of an employee, but rather to restore the discretion to make such payments, if the agency head chooses to do so, from the funds allocated to the component of government.”
Jennifer Krell Davis, communications director for the Department of State, said, “Yes, we are planning to appeal.”
In court documents, Department of State General Counsel C.B. Upton and Jacksonville lawyer Craig Feiser argued that Interim Secretary of State Dawn Roberts was the improper party defendant because she only has ministerial recordkeeping responsibilities, and “has no role in carrying out the will of the Legislature by enforcing the budget proviso.”
Secondly, they argued, “While state-funded attorneys may have anticipated this payment of dues as a legislative appropriation, and may be burdened by having to pay the annual fees out of their own pockets, the fact remains that there is no basis for their claims that they have a legal entitlement to such gratuitous payment under Florida law.”
If the trial judge’s order stands, Eighth Circuit State Attorney Bill Cervone, president of the FPAA, said he will reimburse his assistant state attorneys who had to pay their Bar fees by Aug. 16.
“It’s important in two ways. Even though it sounds like an insignificant amount, given our salary structure, for some, not for all, coming up with $265 is a hardship,” said Cervone, adding that most entry-level attorneys statewide are hired at $40,000 to $41,000.
“A secondary consideration is we have been authorized to do this for years and years and years. I can’t tell you the last time we were not. And part of the way we hire and retain our attorneys is through benefits to compensate for low salaries. One of the benefits is paying Bar dues.
“I’m almost in a situation where I’m going back on my word what I’ve promised new employees.”
Clark also worries that the Government Lawyer Section, with 1,039 members, could suffer if Shelfer’s ruling is overturned on appeal.
“I am very concerned our membership numbers will decline because the government lawyers are now having to pay Bar dues in addition to section dues,” Clark said, adding the $30 Government Lawyer Section dues come with an option also to be a member of the Administrative Law or Criminal Law sections.
Second Circuit Public Defender Nancy Daniels, president of the FPDA, said the $265 Bar fees issue “is really big” to her assistants, whose starting pay is $39,074.
“If you are the average recent law graduate with extensive student loans and personal expenses and family expenses, it all adds up,” Daniels said. “It’s very hard to live on that salary, and many of us recruited people with the pitch that, yes, we have low salaries, but we pay your Bar dues, and the state provides life insurance and health insurance. All three were affected this year.”
The Legislature made changes in health insurance so that employees have to make contributing payments, and there are more out-of-pocket expenses with life insurance, too.
“It’s just that we are dying by a thousand cuts, it seems,” Daniels said. “It’s a symbolic thing, and that’s why the Florida Public Defender Association thought it important to fight that, even if it will not make the Legislature happy with us.”
The last-minute proviso language took many by surprise, including Daniels.
“We didn’t have any idea. We had no opportunity to talk to anybody about it or try to understand where it was coming from and who thought it was a good idea. Who knows? I still don’t know,” Daniels said.
The Legislature did not take the money away from agency’s budgets, but just dictated it could not be used for Bar fees purposes.
While Daniels hopes she will have money in her budget to retroactively pay back her employees if Shelfer’s order stands on appeal, she can’t make any promises.
“I know right now I’m having trouble projecting out to the end of the fiscal year. I was hoping the secretary of state would not appeal, but now this could drag on for a while,” Daniels said. “We’re all going to have to live through the fiscal year and see where we are when the ruling comes down.”