continuity of constitutional government continuity of ......i. continuity of constitutional...

Continuity of Constitutional Government Continuity of Constitutional Government and Legislative Operations:and Legislative Operations:

A Legislative PerspectiveA Legislative Perspective

2007 NCSL Annual Meeting2007 NCSL Annual MeetingBoston, MassachusettsBoston, Massachusetts

Prerequisites to COG/COOP PlanningPrerequisites to COG/COOP Planning

Assessment of constitutional and statutory Assessment of constitutional and statutory requirements regarding continuity of governmentrequirements regarding continuity of government

Succession to powers and duties of public officesSuccession to powers and duties of public officesRelocation of seat of governmentRelocation of seat of governmentMass vacancies in legislative membershipMass vacancies in legislative membershipRequirements for establishing a “quorum” of the Requirements for establishing a “quorum” of the legislaturelegislature


Assessment of issues relating to liability if Assessment of issues relating to liability if appropriate action is not taken to ensure appropriate action is not taken to ensure continued performance of essential functions of continued performance of essential functions of state governmentstate government

Safety of employeesSafety of employeesSafety of visitors/customersSafety of visitors/customersSafety of the publicSafety of the public

Assessment of existing operational capabilities Assessment of existing operational capabilities based on functions, staffing and system capabilitiesbased on functions, staffing and system capabilities


In the immediate aftermath of an event occurring, In the immediate aftermath of an event occurring, COG must consider:COG must consider:

Assuring the safety of legislative leadershipAssuring the safety of legislative leadership

Determining surviving legislative “chain of Determining surviving legislative “chain of command”command”

Deciding what response from the COOP the Deciding what response from the COOP the triggering event requirestriggering event requires

Minor localized event or catastrophic assault on Minor localized event or catastrophic assault on government institutionsgovernment institutions

Viability of continued operations at State CapitolViability of continued operations at State Capitol

Ensuring Continuation of Ensuring Continuation of Constitutional Authority:Constitutional Authority:

““The People Part”The People Part”

Ensuring Continuation of Constitutional Authority: Ensuring Continuation of Constitutional Authority: “The People Part”“The People Part”

I.I. Continuity of Constitutional GovernmentContinuity of Constitutional Government

A.A. Executive Lines of SuccessionExecutive Lines of Succession

Established in Article IV, Section 3 of the Established in Article IV, Section 3 of the Constitution and section 14.055, Florida StatutesConstitution and section 14.055, Florida Statutes1.1. GovernorGovernor2.2. Lt. GovernorLt. Governor3.3. Attorney GeneralAttorney General4.4. Chief Financial OfficerChief Financial Officer5.5. Commissioner of AgricultureCommissioner of Agriculture

Section 14.055, Florida Statutes provides selection Section 14.055, Florida Statutes provides selection of a governor in the event of vacancy in the of a governor in the event of vacancy in the executive line of succession (Joint Proclamation executive line of succession (Joint Proclamation of the Legislature)of the Legislature)


B.B. Legislative Lines of SuccessionLegislative Lines of Succession

Designated by Legislative Rule as opposed to the Designated by Legislative Rule as opposed to the Constitution or statuteConstitution or statute

1.1. Speaker pro Tempore serves in absence or Speaker pro Tempore serves in absence or incapacity of Speaker (House Rules 1.1 and 2.5)incapacity of Speaker (House Rules 1.1 and 2.5)

2.2. President pro Tempore serves in President’s President pro Tempore serves in President’s absence. If Presidency becomes permanently absence. If Presidency becomes permanently vacant, the Senate may designate a new vacant, the Senate may designate a new president (Senate Rule 1.7)president (Senate Rule 1.7)


Continuity Concerns Regarding Lines of Succession:Continuity Concerns Regarding Lines of Succession:

Executive lines of successionExecutive lines of succession

1)1) Vacancy or incapacity of Speaker and President may Vacancy or incapacity of Speaker and President may hinder ability to convene sessionhinder ability to convene session

2)2) Mass casualty, incapacity of legislative membership, or Mass casualty, incapacity of legislative membership, or inability to travel may prevent the houses from meeting inability to travel may prevent the houses from meeting due to lack of quorumdue to lack of quorum

3)3) Legitimacy of selection if made by less than a quorum Legitimacy of selection if made by less than a quorum of membersof members


Legislative lines of successionLegislative lines of succession

1)1) Lines of legislative succession are shallow. There is no Lines of legislative succession are shallow. There is no provision made in the House Rules for a successor after provision made in the House Rules for a successor after the Speaker pro Tempore. the Speaker pro Tempore.

2)2) Selection of new leaders from surviving or available Selection of new leaders from surviving or available membership may be problematic if quorum is not membership may be problematic if quorum is not present or travel to seat of government is hinderedpresent or travel to seat of government is hindered

3)3) Competing claims to leadership if groups of legislators Competing claims to leadership if groups of legislators are prevented from traveling to or communicating with are prevented from traveling to or communicating with seat of governmentseat of government

4)4) Legitimacy of leadership selection may be challenged Legitimacy of leadership selection may be challenged if minority party elects replacement leadershipif minority party elects replacement leadership

5)5) Length of term for newly elected leadership Length of term for newly elected leadership –– duration duration of crisis or until next election?of crisis or until next election?


D.D. Relocation of Seat of GovernmentRelocation of Seat of Government

Governor is constitutionally authorized to Governor is constitutionally authorized to transfer the seat of government in times of transfer the seat of government in times of invasion or grave emergency (Article II, invasion or grave emergency (Article II, Section 2, Florida Constitution)Section 2, Florida Constitution)


Continuity Concerns Relating to Relocation of Seat of Continuity Concerns Relating to Relocation of Seat of Government:Government:

1)1) Legislative sessions must be held at the seat of Legislative sessions must be held at the seat of government; legitimacy of legislative actions if government; legitimacy of legislative actions if legislature is unable to physically relocate to newly legislature is unable to physically relocate to newly designated seat of governmentdesignated seat of government

2)2) Constitutionally questionable whether Governor may Constitutionally questionable whether Governor may designate multiple seats of government to designate multiple seats of government to accommodate inability to relocate (Section 22.15, accommodate inability to relocate (Section 22.15, Florida Statutes, contemplates multiple seats of Florida Statutes, contemplates multiple seats of government)government)


3)3) Governor is apparently authorized to move the seat of Governor is apparently authorized to move the seat of government out of the state. Concern whether public government out of the state. Concern whether public will accept leadership decisions or legislation enacted will accept leadership decisions or legislation enacted out of stateout of state

4)4) Federal government involvementFederal government involvement


E.E. Mass Vacancies in Legislative Membership due Mass Vacancies in Legislative Membership due to Death or Incapacityto Death or Incapacity

Legislative membership is determined by popular Legislative membership is determined by popular vote election of citizenryvote election of citizenry

Most difficult branch of government to Most difficult branch of government to repopulate in the event of mass casualtyrepopulate in the event of mass casualty


Continuity Concerns Surrounding Mass Vacancies in Continuity Concerns Surrounding Mass Vacancies in Legislative Membership:Legislative Membership:

1)1) Legislative vacancies filled by special election rather than Legislative vacancies filled by special election rather than by an appointment processby an appointment process

Article II, Section 6, Florida Constitution permits the Article II, Section 6, Florida Constitution permits the legislature to fill vacancies in public office only in legislature to fill vacancies in public office only in periods resulting from “enemy attack”periods resulting from “enemy attack”

2)2) Special elections are called by the Governor. Mass Special elections are called by the Governor. Mass vacancy in executive and legislative leadership will hinder vacancy in executive and legislative leadership will hinder a call for elections.a call for elections.


3)3) Florida’s Emergency Continuity of Government Act, Florida’s Emergency Continuity of Government Act, Chapter 22, Florida Statutes, expressly permits the Chapter 22, Florida Statutes, expressly permits the designation of interim successors to local offices and designation of interim successors to local offices and officers. officers.

Does not apply to the LegislatureDoes not apply to the Legislature

4)4) The Constitution defines “vacancy in office.” The definition The Constitution defines “vacancy in office.” The definition does not include “incapacity to serve.” (Article X, Section does not include “incapacity to serve.” (Article X, Section 3, Florida Constitution)3, Florida Constitution)

Offices held by incapacitated members are not Offices held by incapacitated members are not vacant and may not be filledvacant and may not be filled

Members may be reluctant or unable to resignMembers may be reluctant or unable to resign


II.II. Continuity of Legislative OperationsContinuity of Legislative Operations

A.A. Assess available staffing and lines of authority Assess available staffing and lines of authority

Lines of authority should be addressed in the Lines of authority should be addressed in the Legislative COOP prior to a triggering event and Legislative COOP prior to a triggering event and should be periodically revised on an asshould be periodically revised on an as--needed needed basisbasis

Delegation of authority to make policy decisions, Delegation of authority to make policy decisions, and any limitations thereto, need to be and any limitations thereto, need to be addressedaddressed


Both, lines of authority and delegations to act, Both, lines of authority and delegations to act, should be readily known to avoid confusion as to should be readily known to avoid confusion as to “who is in charge” and who has authority to act“who is in charge” and who has authority to act

B.B. Determine whether staff operations may Determine whether staff operations may continue in place or whether mobilization of continue in place or whether mobilization of essential staff at primary, secondary or tertiary essential staff at primary, secondary or tertiary site(s) is necessarysite(s) is necessary

Ensure that adequate facilities are selected and Ensure that adequate facilities are selected and prepared prior to an emergencyprepared prior to an emergency

Make provision for facilities in immediate, Make provision for facilities in immediate, regional and long range zones for short term and regional and long range zones for short term and long term use for essential operations and long term use for essential operations and possibly, meetings of the legislaturepossibly, meetings of the legislature


Continuity Concerns Relating to Staffing, Lines of Continuity Concerns Relating to Staffing, Lines of Authority, and Mobilization:Authority, and Mobilization:

1)1) If relocation is necessary, does short term situation require If relocation is necessary, does short term situation require attendance by surviving members or is situation such that attendance by surviving members or is situation such that membership is not required to gathermembership is not required to gather

2)2) Viability of virtual office operations should be considered Viability of virtual office operations should be considered for holding virtual sessions, virtual debate and virtual voting.for holding virtual sessions, virtual debate and virtual voting.However, legality of such action could be questionableHowever, legality of such action could be questionable

Reengaging Constitutional Reengaging Constitutional Government:Government:

Restarting Legislative OperationsRestarting Legislative Operations

Reengaging Constitutional Government and Reengaging Constitutional Government and Restarting Legislative OperationsRestarting Legislative Operations


A.A. Quorum issues and inability to act, due to want Quorum issues and inability to act, due to want of a quorumof a quorum

Article III, Section 4, Florida Constitution defines Article III, Section 4, Florida Constitution defines “quorum” as a majority of the membership of “quorum” as a majority of the membership of each house.each house.

Florida House of Representatives is comprised of Florida House of Representatives is comprised of 120 members 120 members –– required number for quorum is 61required number for quorum is 61

Florida Senate is comprised of 40 members Florida Senate is comprised of 40 members ––required number for quorum is 21required number for quorum is 21


Continuity Concerns about Obtaining a QuorumContinuity Concerns about Obtaining a Quorum

1.1. In the event of mass casualty or an inability to travel In the event of mass casualty or an inability to travel to the seat of government, the legislature may be to the seat of government, the legislature may be prevented from acting by want of a quorumprevented from acting by want of a quorum

2.2. Want of a quorum in one house will also effectively Want of a quorum in one house will also effectively paralyze the entire legislature because the paralyze the entire legislature because the Constitution requires passage of laws by a majority Constitution requires passage of laws by a majority vote in both housesvote in both houses

3.3. Lack of quorum would be keenly felt in matters Lack of quorum would be keenly felt in matters involving succession to officeinvolving succession to office


4.4. The constitutionality of attendance, voting and other The constitutionality of attendance, voting and other legislative duties and responsibilities by alternate means legislative duties and responsibilities by alternate means would need to be addressed in the Legislative COOP prior would need to be addressed in the Legislative COOP prior to any triggering eventto any triggering event

5.5. Constitutional changes, statutory amendment or the Constitutional changes, statutory amendment or the adoption of internal emergency management rules adoption of internal emergency management rules addressing lack of a quorum in emergency situations addressing lack of a quorum in emergency situations would need to be addressedwould need to be addressed


B.B. ExtraExtra--constitutional actionsconstitutional actions

Article II, Section 6, Florida Constitution permits Article II, Section 6, Florida Constitution permits the legislature to take “extra” constitutional the legislature to take “extra” constitutional action to deal with an emergencyaction to deal with an emergency

Power is limited only to cases of enemy attackPower is limited only to cases of enemy attack

Restricts powers only in a manner that is necessary Restricts powers only in a manner that is necessary to deal with the emergencyto deal with the emergency


Continuity Concerns Surrounding ExtraContinuity Concerns Surrounding Extra--Constitutional ActionConstitutional Action

1.1. Original constitutional authority appears to be Original constitutional authority appears to be driven by Cold War anticipation of devastating driven by Cold War anticipation of devastating attack on United States. Authority fails to consider attack on United States. Authority fails to consider an emergency due to manan emergency due to man--made causesmade causes

Hazardous waste spillHazardous waste spillNature or acts of GodNature or acts of GodPlaguePlagueContagionContagionIllnessIllness



A.A. Reestablish lines of communicationReestablish lines of communication

Detailed plans on how members will Detailed plans on how members will communicate amongst themselves, with communicate amongst themselves, with leadership, other branches of government, and leadership, other branches of government, and perhaps press media need to be addressed in perhaps press media need to be addressed in the Legislative COOPthe Legislative COOP

An assessment of alternate sites for An assessment of alternate sites for communication support ability needs to be communication support ability needs to be made prior to a triggering eventmade prior to a triggering event


Assess and address communication security and Assess and address communication security and integrityintegrity

Assess and address possible need for Assess and address possible need for communication mobilitycommunication mobility

B.B. Activate internal logistics and administration Activate internal logistics and administration functionsfunctions

Identify personnel necessary for continued Identify personnel necessary for continued operation on a short, intermediate, and long operation on a short, intermediate, and long term or permanent basis in the Legislative COOP. term or permanent basis in the Legislative COOP. Keep list continuously updated and reKeep list continuously updated and re--evaluatedevaluated


Ensure that the Legislative COOP includes Ensure that the Legislative COOP includes provision for personnel accommodationprovision for personnel accommodation

LodgingLodgingTransportationTransportationFoodFood

Identify and preIdentify and pre--position at alternate sites prior to position at alternate sites prior to triggering event, material and equipment triggering event, material and equipment necessary for short term, intermediate, and long necessary for short term, intermediate, and long term or permanent operationterm or permanent operation


C.C. Assess record or database integrityAssess record or database integrity

OffOff--site duplication of vital databases need to be site duplication of vital databases need to be addressed by the Legislative COOP prior to a addressed by the Legislative COOP prior to a triggering eventtriggering event

OffOff--site records should be updated on a site records should be updated on a continuing basescontinuing bases

Database redundancy should be consideredDatabase redundancy should be considered


Means whereby journals and other record Means whereby journals and other record keeping functions can be preserved, and keeping functions can be preserved, and constitutional duties of the Clerk of the House constitutional duties of the Clerk of the House and Secretary of the Senate can be maintained and Secretary of the Senate can be maintained throughout the duration of an emergency need throughout the duration of an emergency need to be addressedto be addressed

Offices should prepare and maintain emergency Offices should prepare and maintain emergency “grab“grab--nn--go” kits with records and data necessary go” kits with records and data necessary to continue or restart their functions.to continue or restart their functions.


D.D. Assess the safety and security of Assess the safety and security of alternate sites and personnelalternate sites and personnel

Means to locate key personnel, to maintain Means to locate key personnel, to maintain their safety and to maintain the safety and their safety and to maintain the safety and integrity of the State Capitol or alternate integrity of the State Capitol or alternate sites need to be addressed in the COOPsites need to be addressed in the COOP

Continuity Concern Relative to Safety and SecurityContinuity Concern Relative to Safety and Security

1.1. Safety and security may adversely impact public Safety and security may adversely impact public access including access by media and pressaccess including access by media and press

Ensuring Legitimacy of Ensuring Legitimacy of Legislative ActionLegislative Action

Ensuring Legitimacy of Legislative ActionEnsuring Legitimacy of Legislative Action


A.A. Eliminate hindrances to actEliminate hindrances to act

The Legislature, as a deliberative entity, The Legislature, as a deliberative entity, serves to prevent prompt legislative actionserves to prevent prompt legislative action

Legislature may have to rely on emergency Legislature may have to rely on emergency mechanisms to speed passage of legislationmechanisms to speed passage of legislation


B.B. Sunshine requirementsSunshine requirements

The Florida Constitution requires certain The Florida Constitution requires certain legislative meetings to be open and noticed to legislative meetings to be open and noticed to the publicthe public

Continuity ConcernsContinuity Concerns

1.1. Use of permitting waiver reading requirements, single Use of permitting waiver reading requirements, single subject, waiting periods, notice and amendatory subject, waiting periods, notice and amendatory requirements, and supermajorities to slow down passage of requirements, and supermajorities to slow down passage of legislation, risks an adverse perception of legitimacy by the legislation, risks an adverse perception of legitimacy by the publicpublic


2.2. Failure to consider the “public’s right to know” may raise Failure to consider the “public’s right to know” may raise legitimacy concernslegitimacy concerns



A.A. Ability to support continued session operationAbility to support continued session operation

Issues to addressIssues to address

The ability of the House and Senate to interact with The ability of the House and Senate to interact with each other to ensure prompt handling of all each other to ensure prompt handling of all legislation matterslegislation matters

Whether certain issues should be deferred to Whether certain issues should be deferred to executive branch management or should be executive branch management or should be handled legislativelyhandled legislatively


Communication of legislative decisions or concerns Communication of legislative decisions or concerns to the executive branch and the publicto the executive branch and the public

Transportation, feeding and lodging for members Transportation, feeding and lodging for members and necessary support staffand necessary support staff

The outlook for continued operations offThe outlook for continued operations off--site and site and whether a return to the Capitol is feasiblewhether a return to the Capitol is feasible

Final Thoughts and ConcernsFinal Thoughts and Concerns


I.I. Things to PonderThings to Ponder

A.A. Concerns regarding constitutional changes, Concerns regarding constitutional changes, statutory amendment or rule revision necessary statutory amendment or rule revision necessary to address deficienciesto address deficiencies

Political will to actPolitical will to act

Need for sufficient explanation of, and reasons to Need for sufficient explanation of, and reasons to support, changes necessarysupport, changes necessary

Maintaining momentum to act before Maintaining momentum to act before ambivalence or complacency sets inambivalence or complacency sets in


B.B. What role should political partisanship play in What role should political partisanship play in continuity of operations planning?continuity of operations planning?

C.C. If, due to casualty or vacancy, the minority If, due to casualty or vacancy, the minority party becomes the majority party, what role party becomes the majority party, what role should it embrace?should it embrace?

Majority party?Majority party?

“Temporary” majority party?“Temporary” majority party?

Continue as minority party?Continue as minority party?


D.D. If it is capable of electing a new Senate If it is capable of electing a new Senate President or House Speaker, should the minority President or House Speaker, should the minority party of either house be permitted, or even party of either house be permitted, or even required, to do so?required, to do so?

Continuity of Constitutional Government Continuity of Constitutional Government and Legislative Operations:and Legislative Operations:

A Legislative PerspectiveA Legislative Perspective

2007 NCSL Annual Meeting 2007 NCSL Annual Meeting Boston, MassachusettsBoston, Massachusetts

Thank youThank you

continuity of constitutional government continuity of ......i. continuity of constitutional...

Documents