Loading...
HomeMy WebLinkAbout1998 04 13 Other Item 1 Date: 04131998 The following Minutes for Regular Meeting 03091998 ~Nere approved during the 04/13/98 Regular City Commission Meeting for this date. CONTINUATION OF THE MARCH 9, 1998 REGULAR MEETING OF THE CITY COMMISSION The continuation of the March 9,1998 Regular Meeting of the City Commission was called to order by Mayor Paul P. Partyka at 5:30 p.m. ROLL CALL: Paul P. Partyka, present Deputy Mayor Cindy Gennell, present Ronald W. McLemore, :present Attorney Bob Guthrie, present COMMISSIONERS: Robert S. Miller, absent Michael S. Blake, present Ed Martinez, absent David McLeod, present Commissioner Blake asked to interrupt at this point and handed out to the Mayor and Commission a copy of Ordinance 585. Commissioner Blake said Ord. 585 was passed in June of 1995 by the previous Commission and Ord. 585 is an ordinance of the City of Winter Springs, Florida providing for the automatic removal from the City Commission or any City Commission approved Board of any member thereof, who is a member of the Board of Directors or of an organization or group that has voted or filed a claim against the City of Winter Springs, Florida..." Commissioner Blake said the ordinance basically states that if an individual on this Board or on any other Board of the City sues the City or files a claim against the City, then that individual is automatically removed and is eligible for immediate D)rfeiture of his or her office pursuant to law. Commissioner Blake sai.d there was a suit filed on March 16th in Circuit Court ofthe 18th Judicial District in and for Seminole County Florida case #98-532CA-16-E, plaintiff is Paul P. Partyka, respondents or defendants are Michael Blake, Cindy Gennell, Edward Martinez, David McLeod and Robert Miller; each in their official capacities as Commissioners of and representatives for the City of Winter Springs, Florida. Specifically, it states that this is an action for declaratory reliefpursuant to Chapter 86, Florida Statutes and appropriate mandatory injunctive relief. A review of that section of the State Statutes reveals Section 86.091, parities - it says when declaratory relief is sought, all persons may be made parties who have or claim any interest which would be affected by this declaration, specifically it goes on to say: in any proceeding concerning County or municipal Charter Ordinance, or franchise, such County or municipality shall be made a party and shall be entitled to be heard. Commissioner Blake said based on this Ordinance, that requires for the automatic removal, and the fact that this case was filed on March 16th, by Paul Partyka, against the Commissioners and thus the City, his question is, is !vir. Partyka still the Mayor? Ifnot, then any proceedings we go through this evening would be in question if he continues to sif up here. Attorney Guthrie said this is not codified but it does appear to be an ordinance, an ordinance, statute or rule of a public agency is presumed to be valid on it's face, and it's pretty concise and straight forward. Attorney Guthrie said it is lucky that we have an odd number of Commissioners so it's unlikely that we would need the Mayor to vote. Attorney Guthrie said he needs to look at this but said he sees nothing that suggests it's not valid. Continuation from the March 9.1998 meeting City Commission 97-98-024 Page 2 Attorney Guthrie said we do have home rule powers, we have the powers to enact ordinances and this appears to be an ordinance of the City of Winter Springs. Mayor Partyka said the whole issue here continues to be this resolution of what the Mayor's responsibilities are. A motion was made by the Commission to pursue it, all we're asking for is declaratory relief, to get a judgement on this; there are no damages involved, there is no individual suits involved. Mayor Partyka said normally suits are given to the Mayor of the City as a representative, in this case, since there is an issue on the table, in terms of a straight business decision to handle this definition of what the responsibilities are, we've asked the Court to do that. Mayor Partyka said he doesn't know if that is consistent with that this is, but said he doesn't know all the issues, and said he doesn't see where we are asking for a declaratory judgement on something where we are not suing the City we are just asking for a decision versus this. Attorney Guthrie said it is a lawsuit. Commissioner Blake said Section II, states the term claim as defined herein shall include any vote to pursue and State or Federal administrative (which this is) or litigation remedy, or the filing of any document initiating State or Federal administrative or litigation remedy. Commissioner Blake said this suit was duly filed on March 16th and said as he understands it, as of today it still in fact is a suit, although that is a mute point because the ordinance clearly states that the suit is filed, not actually heard. Commis5.ioner Blake said it is clearly a suite, the ordinance is very brief and seems to be very clear and in fact, in the City's Charter, it states under Section 4.08 - Vacancies, Forfeitures of Office: that a Commissioner or Mayor shall forfeit his office ifhe lacks at any time during his office any qualifications prescribed by this Charter or by Law; Commissioner Blake said that would seem to him to be the case in this situation as this ordinance clearly states, that it's an automatic removal, which means we don't as a Board have anything to say about it. Mayor Partyka said this is a motion that we followed through on the Commission's motion and we are asking for a decision, and said he doesn't know what that has to do with what they are trying to do. The impression when we set this (ordinance) was for legal damages type of litigation not to get a decision on what the Charter says. Commissioner McLeod said he thinks the Commission had asked for a ruling but after the presentation made by Commissioner Gennell, the other evening, it became quite apparent to the Commission that we didn't need a ruling and therefore we had selected not to proceed, you (Mayor) on your own filed the lawsuit with Seminole County against this Commission. Commissioner McLeod said he thinks it was made very clear the other evening that it was to be dropped. Commissioner Blake said at the last meeting (or this meeting as it is continued) ruled on it's own rules, which we have the power to do under the Charter and we made a declaratory resolution of what the Charter says, which meant there was no question existing. Commissioner Blake asked Commissioner Gennell if it was her intention (also) as what was laid out Continuation from the March 9. 1998 meetine; City Commission 97-98-024 Pae;e 3 in front of the Commission and said that is the way he understood it. Commissioner Gennell ~;aid that was her intention and said as a matter of fact the intention was designed to exactly avoid this kind of a situation, that was a formal resolution passed by this body. Commissioner McLeod said if the Mayor didn't understand that, that he has the option to pull back the suite. Mayor Partyka asked Attorney Guthrie what is next for now. Attorney Guthrie said in reading the ordinance, with the Charter, it talks about "shall be eligible for forfeiture of his /her office pursuant to law", the Charter does address how that is handled, it does say that the Commissioners will be the judge of the election and qualification of it's members and the grounds for forfeitures of their office and for that purpose shall have the power to subpoena witnesses, administer oaths and require production of evidence. "A member charged with conduct constituting the grounds for forfeiture of his office, shall be so notified by certified mail. And said if the Commission desires to proceed, that would be a step and it states "shall be entitled to a public hearing on demand" and :it is required that notice of that meeting be published in advanced. It also says that decisions made by the Commission, under this section, shall be subject to review by the Courts. Attorney Guthrie said he hasn't had a chance to look at this any deeper, but it does outline a due process provision. Mayor Partyka asked the due process would be: whether he filed a claim against the City of Winter Springs, and said given the fact that there is still a lot of unknowns, wouldn't it be appropriate to spend time researching this to make sure that it is right or not right. Attorney Guthrie said he would like an opportunity to review it and said then decide what action the Commission can take and if there is any other due process steps that are necessary. Mayor Partyka said until that point is clear, then basically he is still the Mayor of the City. Attorney Guthrie said until the action to remove the Mayor from office occurs, that is correct. Commissioner Gennell said that Commissioner Blake raised the issue, and rather than having it postponed, would it be in order to have a motion, if Commissioner Blake so desired, to go forward on the basis ofOrd. 585 and proceed with that pursuant to Attorney Guthrie's study of it, so that we can start the certified maiI process if that's what's necessary. Attorney Guthrie said there is two separate steps; one is an opportunity for him or someone to look at it, and the second is the notice by certified mail of the decision of this Commission regarding the determining qualificatiom;. Attorney Guthrie said there is two steps there, and he thinks they need to be done in order, have a conclusion first and then the action directing that the certified mail be sent and a decision along those lines. Continuation from the March 9. 1998 meetiDf! City Commission 97-98-024 Pae;e 4 Commissioner Gennell said if she understands it correctly, one of the other options would be that the Mayor can rescind his action, withdraw his lawsuit. Attorney Guthrie said that was laid out by one of the Commissioners who would be the judge of the qualifications and said that could be a factor in the Commission's decision concerning the Mayor's qualifications. Commissioner Gennell said if she understood correctly, whether the Mayor withdrew the suite or not, this ordinance might still apply. Attorney Guthrie said that is an issue that the Commission would decide. Commissioner Blake said the difficulties that he has is the fact that this ordinance calls for the automatic removal from the Commission and asked what normally takes precedence, and ordinance like that or Section 4.09 where it talks about the due process notification etc. Attorney Guthrie said he l:hinks the Commission ought to give deference to the Charter language, and said he thinks a forfeiture of office is a substantial right, so due process steps to affectively affect the removal office would probably be necessary. Motion was made by Commissioner Blake that based on that legal oplDlOn that the Commission of Winter Springs initiates an investigation subject to Section 4.09 of the City Charter, regards to the applicability of Ordinance 585 as it pertains to Paul P. Partyka via the Commissioners named individually, in lawsuit #98-532CA-16-E in the Circuit Court of the Eighteenth Judicial CiNuit in and for Seminole County Florida. Seconded by Commissioner GenneU. Discussion. Vote: Commissioner Blake: aye; Commissioner Gennell: aye; Commissioner McLeod:: aye. Motion passes. Attorney Guthrie asked if that was a motion to investigate. Commissioner Blake said the motion is to investigate, and said we are stuck with this Charter and we are stuck with this ordinance and said while he understands that the Mayor is trying come up with an answer here, his position personally as a Commissioner is that we have come up with the correct answer and said he thinks there is a little conflict between what this ordinance says and what the Charter says (in a few small areas) and said he thinks we need to look into that. Attorney Guthrie said a cure for that would be to give deference to both. Mayor Partyka said to Attorney Guthrie - then the investigation and research, whatever he is going to do and then come back to the Commission, by the next Commission meeting. Attorney Guthrie said yes. Commissioner Gennell said if she understands the motion correctly, there is no further motion Continuation from the :\1arch 9. 1998 meetine: City Commission 97-98-024 Pae:e 5 needed at this time to institute the actions called for in the Charter and in this ordinance, both, either/or whichever you work it up. Attorney Guthrie said he will investigate and then come back to the Commission, unless the Commission reads the motion as being self effecting that the notice should be sent. Attorney Guthrie said he thinks it would be preferable that they come back to the Commission and have the Commission make the conclusion and decide whether notice should be sent, but that is up to the Commission. Commissioner Gennell said that was the discussion she just had about it, steps being taken and that process that they go forward and asked if that was what Commissioner Blake meant, the appropriate steps. Mayor Partyka asked that the Clerk read back the motion. The Clerk read back the motion. Commissioner Blake said he has concerns as to the business that we may transact past this point until we come up with this decision. Specifically, if it is ruled that in fact Paul Partyka ceased to be the Mayor at the moment and time this lawsuit was filed, which is how he understands ordinance 585 to read, what jeopardy does that put us in any business we transact between now and then. Attorney Guthrie said if that's the conclusion and finding there could be a problem, particularly on items that the Mayor voted on. Commissioner Blake asked Attorney Guthrie what he recommends the Commission does between now and then. Attorney Guthrie said the Mayor could voluntarily step aside until this is resolved; we could avoid a situation where he votes if one of you must abstain, that item just automatically be continued, perhaps we could deal with those as they came up, hopefully there won't be a problem with the Mayor presiding.. Mayor Partyka said the only time he would get to vote if there was a tie vote and said that is on a two/two tie, so there would be no voting situation for him today. Discussion. Commissioner Blake said a vote requires three affirmative votes and there would be no way the Mayor could vote tonight. Mayor Partyka said until this is resolved, it would seem to him that he is the Mayor. Commissioner McLeod re:ad a letter (on Leffler and Associates P.A. letterhead), from Attorney Mike Jones, that was attached ito the lawsuit. Commissioner McLeod mentioned that Attorney Lang is mentioned in the letter and said that Attorney Lang is one of the City Attorneys, who works on the Pension Board, and said it appears to him that Mr. Lang is working with Mr. Jones and the Mayor and Attorney Robert Plew;. Commissioner McLeod said (with that in mind) he recommends at this time Mr. Lang be removed as one of the City's Attorneys. Discussion. Continuation from the :March 9. 1998 meetine: City Commission 97-98-024 Pae:e 6 Motion was made by Commissioner McLeod that at this time, Mr. Lang no longer represents this City and the Pension Board. Seconded by Commissioner Blake. Discussion. Vote: Commissioner Gennell: aye; Commissioner Blake: aye; Commissioner McLeod: aye. Motion passes. Commissioner Gennell said she shares the other Commissioners and the Attorney's concerns about the interim period, if in fact it is found out that the Mayor (at this point) was not the Mayor; and said she has concerns about the Mayor signing ordinances and checks and those kind of things. Commissioner Gennell asked that it be on the agenda very soon, and said there has been a request for a workshop on the 30th, and requested that the City Attorney come back to the Commission with the information at that time and have a Special Meeting. It was the consensus of the Commission to have a Special Meeting before the Workshop on March 30, 1998. AGENDA CONTINUATION OF THE MARCH 9,1998 MEETING MONDAY. MARCH 23. 1998 5:30 P.M. Utility and Finance Departments L. Requesting a Workshop to review the proposed rate and policy Ordinance. PURPOSE: to request that the Commission schedule a workshop for March 30, 1998 at 6:30 p.m. to review the proposed revisions to Chapter 19 of the Code of Ordinances pertaining to potable water rates for irrigation and changes to the customer :;ervice policies. procedures. and practices: The Commission was in .agreement to hold a workshop on March 30, 1998. Mayor Partyka commentt:d that he is disappointed, because the point of what we are trying to do is to determine the Mayor's job description and said that is all they are trying to find out and said he doesn't know why it has gotten so complicated. Parks and Recreation Department K. Requests the Commission review the policy for opening and closing of the gate at Central Winds Park for Orange A venue, PURPOSE: to review the current policy on the Orange Avenue gate at Central Winds Park and fe-adopt or change the policy: Manager McLemore stated that there has been expressed concern about the fact the gate (at the Park and Orange Ave.) is being left open during the day. The question before the Commission is what does the Commission desire Staff to do, this has been brought forward as a safety issue. Manager McLemore said that it has been his understanding that there has been observance of people coming down Orange Avenue and into the Park area in an unsafe way. Manager McLemore said that during the day we have a lot ofrnaintenance work that goes on and the City's Staff is constantly going in and out of that gate. Commissioner Blake said he asked to have this issue brought up and said several weeks ago, on a Continuation from the :March 9.1998 meetine: City Commission 97-98-024 Pae:e 7 Saturday, he saw a young child almost get run over by a car that was "flying" up Orange Avenue, coming through the Park .and using it as a cut-through to get to 434. Commissioner Blake said it was his understanding that the gate was to be kept closed all the time, as cutting through our City's Park parking area and walkway, you have to drive up a curb and over a sidewalk (the sidewalk that goes between the parking area and the ball fields/concession stand/bathrooms and playground, in order to make the cut-through from Orange Avenue; it is dangerous, and said he has seen High School students use it as a short cut to get out the back way from the High School, and said he has seen residents do it also. Commissioner Blake stated that he has seen continual cut through traffic there at many different times during the day and said he doesn't believe the City should have that as a thoroughfare when we have all the children playing there. Commissioner Blake said his opinion is to close the gate, unless a City vehicle is going through. Commissioner McLeod asked Brook Seal, the Parks and Recreation Director, what he feels about the situation. Mr. Seal said he has no problem with whatever the Commission chooses. Manager McLemore said he has no problem with carrying out at all, whatever the Commission recommends and said arrangements will be made to make it work for Staff. Motion was made by Commissioner Blake to keep the gates at Central Winds Park and Orange Avenue closed at aU times unless a City vehicle is using it. Discussion. Manager McLemore stated that the City does open the gate sometimes when that road is impassable because the people from Orange Avenue, on occasions, have not been able to get in and out so under emergency situations, we would need to maintain that flexibility to open the gate. Commissioner Blake alIlended his motion to state "keep the gates at Central Winds Parks and Orange Avenue closed tl[) general traffic, unless under an emergency situation. Commissioner GenneU agreed for the Second. Vote: Commissioner McLeod: aye; Commissioner Gennell: aye; Commissioner Blake: aye. Motion passes. VI. REPORTS A. City Attorney - Frank Kruppenbacher: Attorney Guthrie said in regards to the lawsuit (that just has been discussed) they are not in the position to defend that, because the Code of Professional Responsibility precludes that, and because the result of the lawsuit would relate to whether we continue in a capacity of City Attorney and continue to make income from that. Attorney Guthrie said he has taken the lawsuit and asked several firms if they would be interested in representing the City (and said he was expecting a second proposal from a second firm and it did not come in). Attorney Guthrie said he has a proposal from Holland and Knight, which is the largest firm in the State of Florida, has no "ax to grind" in this case and said he has talked to tlhe individual that would be the trial lawyer (if it's tried), he is a resident of Winter Springs, lives in Tuscawilla; they have the resources of a public sector practice, they will use David Carwell, who is former City Attorney of the City of Lakeland, and also they have other people that have been involved with public agency representation in the past. Attorney Guthrie said he has their proposal and gave it to the Commission. Attorney Guthrie said since no Commissioner has Continuation from the March 9.1998 meetin!! City Commission 97-98-024 Pa!!e 8 been served as of yet, they have time to respond and said he has checked with the Clerk's office today and the lawsuit is still pending but has not been dismissed or other wise disposed of; we have a chance to look at this and decide what we are going to do. Attorney Guthrie said this would be a retainer arrangement that basically outlines the business relationship regarding the proposal. Commissioner Blake asked about a non-public meeting that is duly recorded to discuss legal strategies. Attorney Guthrie said there is provision in Chapter 286, dealing with the Sunshine Law, that talks about an executive session, where the elected officials, the City Manager and City Attorney and outside council as a.ppropriate can meet in executive session to discuss strategy regarding litigation. Commissioner Blake asked if this is the type of discussion the Commission should be having in that sort; if we do, given that people who sit up here, sit on different sides of the question, how do we reconcile who is invited to such a meeting. Attorney Guthrie said when this lawsuit was filed, he started mulling that, because it is very unusual to have one member of an elected body sue other members; the law is strict on terms of who can attend and said he is concerned that it may be strict as to who must attend; Attorney Guthrie said there has been very little case analysis of it, but the case that he is familiar with has to do with a City in Broward County and it indicated that you had to read it strictly and tho~:e who were listed could come, what it doesn't answer is "does it say that some of those that are listed can be precluded from coming", that is an unanswered question and said he does not know how to answer that right now. There is provisions for an executive session in which the Commission discussed litigation strategy, settlement proposals and a whole litany of things and it is recorded by a court reporter and remains outside the Sunshine (it remains a non- public record) until the litigation is concluded and then it has to be released within a certain time of the final disposition of the case. Attorney Guthrie said this deals with the business end of what we are doing and said he always wants to be careful with litigation and said he appreciates Commissioner Blake raising the point but said this is something that can be raised in public, as it talks about the firms credentials and what they will be charging and the attorneys that will primarily be involved and that will clearly be a matter of public record. Commissioner Gennell said she has discussed this with Attorney Guthrie herself because she had some concerns along the same lines and as was pointed out it would be inappropriate for their firm to be involved in this, so this in effect gives the Commission legal council to get to an executive session if that's the way the Commission wants to do it. Attorney Guthrie stated that this is the only proposal that he has gotten and said he doesn't know if he will get the second or not, but said he has no problem recommending the firm of Holland and Knight; for two reasons: one is the experience of the firm and the hourly rates and said they did put an upper limit cap on what they would be charging and indicated that they would charge the lower of the hourly rate or the upper limit that was quoted in their proposal. Commissioner McLeod asked if it would be proper to say that a defendant then, if we were defending ourselves against someone else, would not be sitting in that meeting, the plaintiff of the other party. Attorney Guthrie said that clearly is the ordinary situation. Commissioner McLeod asked then how would that be different and said how could the Commission have an executive Continuation from the March 9. 1998 meetinl! City Commission 97-98-024 Pal!e 9 meeting among the members of this Commission with somebody who is the Mayor suing the Commissioners for a ruling; in which we point out our strategy or our thoughts, for that individual not to take it back to their council. Attorney Guthrie said clearly it is awkward and it is unusual enough that the law didn't contemplate this type of situation. Mayor Partyka stated that if there is an executive session, he will not be there; and stated that all he wants to know is what his job description is from a Mayor's standpoint. Commissioner McLeod said is it not his understanding, that this individual can be hire on behalf of the City, but is it not that each one of the City Commissioners has the right to hire their own council to be paid for by this City. Attorney Guthrie said this Commission, pursuant to Chapter III of the Florida Statutes can declare that to be a public purpose; the way this was filed, has the effect of suing the City but it was filed in an odd way, in that it sued the Commissioners individually, in your officials capacities, which begs the issue of council so it could be a public purpose finding of "you all" according to Chapter 111, to have your own council, but said he urges that somebody be in charge and said he would like that to be the council that the Commission hires on behalf of the City. Commissioner Gennell ,said the Commission has aired this publicly and said it is not a real complicated situation, it'::; really a simple basic situation and for the benefit of everybody concerned, it would be her hope that the Commission wouldn't have to entertain executive session of that in itself might not even present itself as a problem. Motion was made by Commissioner Gennell to hire the firm of Holland and Knight pursuant to the letter agreement ~llDd to authorize the Deputy Mayor to sign the agreement pertaining to this litigation on behalf of the City. Seconded by Commissioner McLeod. Discussion. Vote: Commissioner Blake: aye; Commissioner Gennell: aye; Commissioner McLeod: aye. Motion passes. B. City Manager - Ronald W. McLemore: No Report. C. Commission Seat I - Robert S. Miller: Absent. D. Commission Seat II - Michael S. Blake: No Report. E. Commission Seat III - Ed Martinez, Jr.: Absent. F. Commission Seat IV -, Cindy Gennell: Commissioner Gennell commented that some of the things taken place this evening gives her no pleasure. Continuation from the March 9. 1998 meetine; City Commission 97-98-024 Pae;e 10 H. Commission Seat V .. David McLeod: No Report. I. Mavor's Office - Paul P. Partyka: No Report. The meeting adjourned at 6:28 p.m. Respectfully Submitted, Margo M. Hopkins, City Clerk APPROVED: PAUL P. PARTYKA, MAYOR