18

CRC Resolution No. 2018-002 on the ballot for Broward county in Florida reads:

Shall the Broward County Charter be amended to give the Broward County Office of Inspector General discretion, as opposed to a mandate, to commence an investigation if good cause exists that an entity or person over whom the inspector general has authority has engaged in misconduct or gross mismanagement

(emphasis mine)

I haven't been able to find what, effectively, the difference would be if the office had discretion instead of a mandate. Would appreciate it if someone could shed some light on the terminology and the effects that the different wording would have on their authority.

  • I've posted an answer that is direct to the point of being useless. Perhaps, you want a more extensive breakdown of the subtle differences between "shall" and "may" in American legalese. In this case, I suggest requesting to migrate this question to law.se as they're more equipped to answer a question like this. – default locale Oct 2 '18 at 12:40
  • It was more a matter of me not having found the source text for the amendment (which @JJJ did quite fast). Your answer does answer my question, but if you feel the question is not of good enough quality for the site I'll defer to you and delete (either that or vote to close). Cheers – user22733 Oct 2 '18 at 12:47
  • 1
    @ardila I think the question is fine, though it may be more on-topic on law.se. As for getting the link, I just googled the term CRC Resolution No. 2018-002. – JJJ Oct 2 '18 at 12:53
  • @ardila your question is absolutely OK here, I was just worried that you were asking about the legal context. Please, keep it here and don't forget to accept the answer :) – default locale Oct 2 '18 at 14:15
  • 1
    Did you look up the words "discretionary" and "mandatory" in the dictionary? There really isn't anything else going on, here. – David Richerby Oct 3 '18 at 16:38
32

Well, the resolution includes the suggested amendment to the Broward County Charter at the end:

Sec. 10.01. – Broward County Office of Inspector General
B. Functions, Authority, and Powers.

(2) The Inspector General shall may commence an investigation if good cause exists that any Official, Employee, or Provider has engaged in misconduct or gross mismanagement.

The only difference is that the word "shall" is replaced with the word "may". Supposedly, the usage of "may" implies that an investigation is optional, rather than mandatory, for the Broward County Inspector General.

  • 11
    +1. You nailed it. Just adding that in my experience within government agencies, this would be considered a huge difference. "Shall" means you must do it (or else you are violating statute) and "may" gives you the discretion to do it. – indigochild Oct 2 '18 at 21:26
21

A mandate implies an absolute requirement of performance. The named individual or party must perform whatever actions are relevant.

Having discretion means that the office has the option to carry out those actions, but is not required to do so.

In this case, I would suggest that the resolution is intended to allow the named Office the option to start an investigation upon cause, rather than being required to start one. In the former, the suggestion of misconduct may trigger an investigation. In the latter, the suggestion of misconduct would make the investigation compulsory.

6

Here is a real life example -

A small unit in a state DMV was, by law, self-funded via fees charged to municipalities for their services. By law, they had to be revenue-neutral - just charge for their costs.

How laws get applied by government are usually defined and interpreted through "administrative rules" - which lays out the details of what the department thinks it means and how that translates into real-life action.

The administrative rules stated that this unit shall recalculate their per case fees on an annual basis, based on past costs and trends in caseloads.

It reached the point where, one year, the per case cost was $5.00. The municipality customers for that unit really liked that nice, round, easy to work with figure and the feedback was that they'd be fine keeping it there (they passed those costs on to the citizens involved, anyway) as opposed to an adjustment to $4.93, if it represented a minor savings for them.

The department drafted a revised administrative rule saying that it may recalculate the fees on an annual basis. So, if costs were changing in any substantive way, or if the unit needed to slightly increase to keep from running at deficit, they could recalculate, but no more often than yearly. Previously, they had to recalculate yearly, every year. This change had to be approved by the state legislature, but something that minor really didn't receive much scrutiny, but did represent a bit of a departure from the pure intent of the law, as originally written and interpreted.

  • 6
    That awkward moment where the DMV was thinking about their customers' convenience... – corsiKa Oct 2 '18 at 17:54
  • 4
    @corsiKa - well, we were actually thinking about our own more than theirs, plus it left us with a few extra shekels we technically shouldn't have had. – PoloHoleSet Oct 2 '18 at 18:02

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy