HomeMy WebLinkAbout2000 12 04 Special
AT THE MERCY OF PEOPLE FOR GOOD GOVERNMENT:
ATTACHMENT "A"
We, the City Commission, the City Administration have been continuosly
been subjected to the whims of the nay sayers; People for Good
Government.
This group has consistently during the past two years have demonstrated an
ability to be detractors whose sole objective has been to obstruct every effort
by the City Administration and this Comrnission to move our City forward.
In order to achieve the retardation of forward movement they have:
1. Supported the Mayor's lawsuit to override the specifics of our Charter
2. Supported the Mayor's veto of the budget in 1999 because we were
spending too much money on legal when the expenditures were brought
about by the very lawsuit
3. Took it upon themselves to sue the City with regards to the assessment
district for the beautification of Tuskawilla. An absolute indication of the
few deliberately wanting to control the many.
4. Took it upon themselves to suggest changes to our Charter that would
usurp the powers of the City Commission while granting many desired
powers to the office of the Mayor and including the granting of subpoena
powers to a citizen's committee; mainly theirs.
5. Every citizen has the unalienable right to run for public office providing
they meet the criteria established by law. However, this group has ran
unknown and unqualified candidates two years in a row in order to gain
control of the commission so that they can accomplish their goal of firing the
city manager and the city attorney.
6. They have been pursuing an alleged Charter violation by this Commission
asregard the City Manager's severance pay. However, the very people
never questioned the vel)' same actions of earlier commission who ascribed
to the same procedure as we did, except that the City Manager in question
and the Commissioners in question were of their approvaL
This maneuvering has cost the City thousands of dollars in legal expense for
the City attorney has had to do a lot of re'search in order to satiate their thirst.
Last Monday the City attorney provided a written response to their
unquenched thirst and Mr. Gene Lein threatened us with court litigation;
something that has become his hobby.
Mr. Lein also referred to portions of Commissioner Gennell' s remarks at
previous forums as "garbage" while being allowed to spread his own litter in
excess of the three minute rule.
Their President writes insulting and injurious let1ers to the Commission and
the City staff, to wit; recently writes charging that the City Manager is on
the take.
There are many more instances; too many to mention and we need to move
on.
However, I in behalf of this Commission request of you, the people, those
who come here with legitimate presentations or in search of relief, those
whose interest lies in a better City for our residents to please not support the
antics of those in that group hungry for power at any length.
I will also request of our Mayor, who at times gives the impression of being
a stickler for Robert Rules, to please comply with the directive of this
Commission and stick to time limitations placed on speakers when they
choose to use this forum and our time to act as demagogues.
Thank you very much
Edward Martinez Jr.
Commissioner - District 3
A"nACHMENT "8"
BROWN, WARD, SALZMAN & WEISS, P.A.
ATTOI{NEYS AT LA W
Usher L. Brown ·
John H. Ward ·
Gary S. Salzmano
./effrey S. Weiss
Suzanne D'Agresta
Anthony A. Garganese"
Scott D. Danahy
./ ames G. V ickaryous
Allison Carmine McDonald
Alfred Truesdell
Arthur R. "Randy" Brown, ./r.
William A. Davis, Jr.
III Nor1h Orange Ave., Suite 875
Post Office Box 2873
Orlando, FL 32802-2873
(407) 425-9566
(407) 425-9596 FAX
Email: firm@orlandolaw.net
Website: www.orlandolaw.net
agarganese@orlandolaw.net
· l30ard Certificd Civil Trial Lawycr
o Board Certified Busincss Litigation Lawyer
U Board Certificd City. County & Local Governmcnt Law
November 27, 2000
The Honorable Paul P. Partyka and
Members of the City Commission
City of Winter Springs
1126 East State Road 434
Winter Springs, FL 32708-2799
Re: Legal Opinion - City Manager's Severance Pay
Dear Mayor Partyka and Members of the City Commission:
I. Introduction
Several citizens have claimed that Section 5.02 of the Winter Springs City Charter ("Section
5.02") does not allow the City Commission to approve an employment contract with the City
Manager that provides for severance pay greater than thirty (30) days in the event the City Manager
is terminated from employment with the City. The City Commission has directed that I provide a
legal opinion regarding whether the claim is supported by law.
Admittedly, the City Charter is not crystal clear on this issue. On the one hand, Section 5.02
might be reasonably interpreted to limit severance pay to thirty days when that section is read
literally and independently, without consideration for the remaining provisions of the City Charter.
On the other hand, for the reasons that follow, the City Charter, when considered in its entirety, can
be reasonably interpreted to permit the payment of severance pay in excess of thirty days if the
severance pay is provided !()r in an employmellt contract for a definite term of employment.
Mayor Paul P. Partyka
Members of the City Commission
November 27,2000
Page 2
II. Factual Background
The impetus of the citizens' claim appears to be the current employment contract with the
City Manager, Ronald W. McLemore ("McLemore"). On November 28, 1995, the City Commission
directed then City Manager John Govoruhk and former City Attorney Frank Kruppenbecker to
negotiate an employment contract, consistent with law and the Winter Springs City Charter, with
McLemore for the position of City Manager. On January 22, 1996, the City Commission' approved
a three (3) year employment agreement with McLemore for the position of City Manager ("1996
Agreement"). Relevant hereto is Section 3 of the 1996 Agreement which provides:
In the event Employee is terminated by the City Commission during the first thirty
(30) months of Employee's initial employment and Employee is willing and able to
perform his duties under this Agreement, then, in that event, the City agrees to pay
Employee a lump sum cash payment equal to six (6) months' aggregate salary; if
Employee is terminated during the thirty-first to thirty-sixth month of the
employment period, then the Employee shall only be entitled to the remaining
months of severance under the term of the Agreement. . . .
Section 3 further states that the City shall have no obligation to pay severance if the City Manager
is terminated for cause or resigns.
On September l6, 1999, the City Commission2 approved a second employment agreement
with McLemore for the position of City Manager (" 1999 Agreement"). The 1999 Agreement is a
four (4) year agreement with one three-year extension. Although Section 3 of the 1999 Agreement
is substantially similar to Section 3 of the 1996 Agreement, several amendments contained in the
1999 Agreement are relevant to severance pay. Section 3 of the 1999 Agreement states:
In the event the Employee is terminated by the City Commission while Employee is
willing and able to perform his duties under this Agreement, the City agrees to pay
Employee nine (9) months (or remaining months under the term of the Agreement
if less than nine (9) months), as severance pay.
J Mayor John Bush and Commissioners Larry Conniff, John Ferring, Cindy Gennell John Langellotti, and
David McLeod.
2 Mayor Paul Partyka and Commissioners Michael Blake, Cindy Gennell, Edward Martinez, David
McLeod, and Robert Miller.
MayorPaulP.Partyka
Members of the City Commission
November 27, 2000
Page 3
Section 3 of the 1999 Agreement also provides that the City is not obligated to pay severance pay
if the City Manager is terminated for cause or resigns.
Both the 1996 Agreement and 1999 Agreement provide for a maximum amount of severance
pay. If the remaining number of months under the agreement is less than the maximum severance
pay, the amount of severance becomes the number of months remaining under the agreement. Thus,
if the city manager is terminated for cause with one month remaining on the agreement, the city
manager would receive only one month severance pay in that case.
Ill. Legal Analysis
The gravamen of the issue presented is one involving the interpretation of the Winter Springs
City Charter. As such, statutory rules of construction apply to interpreting the provisions of the
Winter Springs City Charter. See Great Outdoors Trading, Inc. v. City of High Springs. 550 So. 2d
483 (Fla. 1 st DCA 1989). When interpreting the provisions of a city charter, the provisions must be
considered as a whole. Alsop v. Pierce, 19 So. 2d 799 (Fla. 1944). As stated in Forsythe v.
Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992), "all parts of a statute
must be read together in order to achieve a consistent whole. Where possible, courts must give effect
to all statutory provisions and construe related statutory provisions in harmony with another."
Further, the provisions should be construed so as to be reasonable and consistent with one another.
City ofOpa Locka v. State, 257 So. 2d 100 (Fla. 3rd DCA 1972). A literal interpretation of the city
charter should not be given, however, when to do so leads to an unreasonable or ridiculous result or
to a purpose not designated by the lawmakers. City of Boca Raton v. Gidman, 440 So. 2d 1277 (Fla.
1983). A city charter should be construed together with other laws having the same purpose so that
the provisions are in harmony with each other. Id. at 1282. In addition, city charter provisions
relating to the same subject matter are in pari materia, and to the extent that the understanding of one
provision would aid in the interpretation of the other, they should be construed together and
compared with each other. See Goldstein v. Acme Concrete Corp., 103 So. 2d 202 (Fla. 1958). It
is within this context that the aforementioned citizens' claim and Article V of the Winter Springs
City Charter relating to the City Manager should be analyzed.
Several provisions of the Winter Springs City Charter are relevant to the claim raised.
Section 5.01 of the Winter Springs City Charter provides that "[t]he commission may appoint a City
Manager for an indefinite term and fix his compensation." And, Section 5.02 of the Winter Springs
City Charter provides "[t]he commission may remove the city manager by motion of the City
Commission requiring four (4) affirmative votes; the city manager shall receive thirty (30) days'
severance pay in all such cases." Also relevant is Section 3.01 of the Winter Springs City Charter
which states that "[t]he city shall have all powers possible for a city to have under the constitution
MayorPaulP.Partyka
Members of the City Commission
November 27, 2000
Page 4
and laws of this state as fully and completely as though they were specifically enumerated in this
Charter." Except as otherwise provided by law or the Winter Springs City Charter, all powers are
vested in the City Commission. Section 4.06, Winter Springs City Charter.
Provisions of the Florida Constitution and Florida Statutes set forth powers possessed by
municipalities. Specifically, Article VIII, Section 2(b) of the Florida Constitution provides that:
Municipalities shall have governmental, corporate and proprietary powers to enable
them to conduct municipal government, perform municipal functions and render
municipal services, and may exercise any power for municipal purposes except as
otherwise provided by law.
Further, the Municipal Home Rules Powers Act, ~166.021(4) of the Florida Statutes,
provides in part:
It is the further intent of the Legislature to extend to municipalities the exercise of
powers for municipal government, corporate, or proprietary purposes not expressly
prohibited by the constitution, general or special law, or county charter and to remove
any limitations, judicially imposed or otherwise, on the exercise of home rule powers
other than those expressly prohibited. (Emphasis added).
It is axiomatic, therefore, that the City of Winter Springs is vested with a broad range of
municipal home rule powers with the exception of those powers that are expressly prohibited by law.
The home rule powers possessed by the City of Winter Springs are incorporated into the Winter
Springs Charter as though they were specifically enumerated in the Charter. Section 3.01, Winter
Springs Charter. Unless otherwise provided by law or the Winter Springs City Charter, those powers
are vested in the City Commission. Section 4.06, Winter Springs City Charter. Therefore, based on
the foregoing, the City Commission is clearly vested with the authority to exercise the broad range
of municipal powers provided by the Florida Constitution and Florida Law unless expressly
prohibited by law.
It is self-evident that a municipality clearly has the power to enter into an employment
contract for purposes of conducting municipal government, functions, and services. After
exhaustively researching the issue, I was unable to find any state or federal law that would prohibit
a city commission from entering into an employment contract with a city manager that provides for
severance pay in the event the employment contract is terminated for cause by the city commission.
Accordingly, the claim made by the citizens should be analyzed as follows:
MayorPaulP.Partyka
Members of the City Commission
November 27, 2000
Page 5
Whether the Winter Springs City Charter expressly prohibits or expressly limits the
City Commission's authority to provide severance pay by written contract to the City
Manager in cases where the city manager is terminated from employment.
The only provisions of the Winter Springs City Charter relating to the employment
relationship between the City Manager and the City Commission can be found in Article V, City
Manager. Section 5.01 of Article V pertains to the appointment of the City Manager and Section
5.02 of Article V pertains to removal of the City Manager. Because Sections 5.01 and 5.02 relate
to the same subject matter, that is, the employment of the City Manager, a reasonable argument can
be made that the two sections are in pari materia and must be construed with reference to each other.
See Goldstein v. Acme Concrete Corp., 103 So. 2d 202 (Fla. 1958). As such, the meaning of Section
5.01 should be used as an aid in interpreting Section 5.02 so that the two sections are construed in
harmony with each other.
Section 5.01 provides that "[t]he City Commission may appoint a City Manager for an
indefinite term and fix his compensation." In other words, the City Commission may, but is not
required to, appoint a City Manager for an indefinite term of employment. An indefinite term of
employment is employment without an employment contract that specifically obligates the City
Commission and the City Manager for a definite term of employment. See Maguire v. American
Family Life Assurance Co. of Columbus, Ga., 442 So. 2d 321 (Fla. 3rd DCA 1983); Perri v. Byrd,
436 So. 2d 359 (Fla. 1st DCA 1983). Where the term of employment is "indefinite," either party for
any reason may terminate it at any time and no action may be maintained for breach of employment
contract. DeMarco v. Publix Super Markets, 384 So. 2d 1253 (Fla. 1980). Apparently, Section 5.01
contemplates employment of the City Manager without a definite term contract. It is, therefore,
reasonable to argue that Section 5.02 relating to termination and severance pay should be interpreted
in the context of an employment contract for an indefinite term. As such, if the City Manager did
not have an employment contract for a definite term, Section 5.02 by operation oflaw would require
that the City Manager receive thirty days severance pay if terminated by the City Commission. On
the other hand, if the City Manager had a definite term employment contract, severance pay could
be negotiated and agreed to in the employment contract.
Furthermore, Sections 5.01 and 5.02 do not "expressly" prohibit severance pay greater than
thirty days in instances where the city manager has an employment contract for a definite term. An
"express" prohibition must be "clear; definite; explicit; plain; unmistakable; not dubious or
ambiguous; made known distinctly and explicitly, and not left to inference." See Blacks Law
Dictionary (Westlaw). Absent such an express prohibition, the City Commission is arguably vested
with Municipal Home Rule Powers necessary to contract for severance pay greater than thirty days.
Therefore, pursuant to the Municipal Home Rule Powers Act and Sections 3.01 and 4.06 of the
Winter Springs City Charter, one could reasonably interpret the Winter Springs City Charter to
~ayorPaulP.Partyka
Members of the City Commission
November 27,2000
Page 6
provide that the City Commission is vested with the authority to enter into a definite term
employment contract which provides the city manager with severance pay greater than thirty days.
In this case, the past and current City Commissions have entered into two separate
employment contracts with McLemore for the position of City Manager. Both contracts have
definite terms of employment. The 1996 Agreement was for three years and the 1999 Agreement
is for four years with a three year optional extension. Further, both contracts provide for severance
pay. The 1996 Agreement provided for a maximum of six months severance and the 1999
Agreement provides for a maximum of nine months severance. Severance pay is only paid in the
event the City Manager is terminated by the City Commission when the City Manager is "willing
and able to perform his duties" under the Agreement. Even then, under the 1999 Agreement, the
City ~anager shall receive only a maximum of nine months severance pay. If the City Manager is
terminated with less than nine months remaining under the Agreement, severance pay will only be
paid for the remaining months left under the Agreement. The City is not obligated to pay severance
if the City Manager is terminated for cause. There is, therefore, no guarantee that the City Manager
will receive any severance pay under the 1999 Agreement.
Two City Commissions, apparently with advice from legal counsel, have approved definite
term City Manager employment contracts with McLemore that provide for the possibility of
severance pay in excess of thirty days. In other words, the City Commission appears to have
construed the City Charter as not prohibiting the payment of severance pay greater than thirty days
under a definite term, written employment contract. Based on the foregoing, one could reasonably
argue that the City Commission's interpretation of the City Charter is supported by law. If that
interpretation is challenged, the City Commission's interpretation of the City Charter should be given
considerable weight by the courts construing and applying the Winter Springs City Charter. See
Pepe v. City of New Britain, 524 A.2d 629 (Conn. 1987); Mile High Enterprises, Inc. v. Dee, 558
P.2d 568 (Colo. 1977).
In sum, it is fair to say that a reasonable person could interpret Section 5.02 of the Winter
Springs City Charter in a number of ways. A person could choose to isolate Section 5.02 and
interpret it literally without regard to other relevant provisions of the City Charter and law.
Alternatively, a person could choose to interpret Section 5.02 in conjunction and harmony with other
relevant provisions of the City Charter and law. Reasonable people can disagree. In fact, even
courts can disagree. See Partyka v. Blake, et al., 731 So. 2d 749 (Fla. 5th DCA 1999) (trial court's
interpretation of the City of Winter Springs Charter relating to the City Commission's authority to
terminate the City Attorney overturned), rev. denied, 744 So. 2d 456 (Fla. 1999). Accordingly,
unless it is judicially determined otherwise, the interpretation of the previous City Commission and
the current City Commission that the City Charter does not prohibit the payment to a City Manager
MayorPaulP.Partyka
Members of the City Commission
November 27,2000
Page 7
of severance pay greater than thirty days under a definite term, written employment contract appears
to be reasonable based on the foregoing and should be given considerable weight.
I trust this answers the City Commission's inquiry within the full context of existing legal
authority .
Anthony A. ~~
City Attorney .
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