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Home My WebLink About2000 12 04 Regular D City Managers Contract COMMISSION AGENDA ITEM D CONSE INFORMA ONAL PUBLIC HEARING REGULAR X 11/27/00 Meeting MGR ;( /DEPT Authorization REQUEST: City Attorney requests the Commission review his legal oplruon regarding Section 3 of the City Manager's contract, as it applies to Section 5.02 of the City Charter. PURPOSE: The purpose of the Agenda Item is to request the Gty Commission consider the matter pertaining to a decision from the Gty Attorney regarding the Gty Manager's contract, as it applies to Section 5.02 of the Gty Charter. CONSIDERATION: At the October 23, 2000 Regular Meeting, Mayor Partyka requested that Regular Agenda item "E" be discussed, which partially pertained to this same matter. Due to time constraints, the October 23, 2000 Regular Meeting was not completed, however, this Agenda Item along with others were heard at the continuation of the October 23, 2000 Regular Meeting, which was held on October 30, 2000. During the October 30, 2000 Special Meeting, discussion ensued between members of the Commission, Manager Mclemore, and Attorney Garganese. Attorney Garganese stated that he "could have an opinion on this in less than a month." With consensus of the Commission, it was agreed that Attorney Garganese would provide an opinion in approximately thirty (30) days. FUNDING: None Required. \\CITYHALL_PDC\SHARED\City Hall\Agendas, Agenda Items, Minutes\Agenda Items\Calendar Year 2000\November 2000\November 27, 2000\City Manager's Contract.doc RECOMMENDATION: It is recommended that the Commission accept the City Attorney's opinion as provided in the attached opinion letter. ATTACHMENTS: A. Copy of the City Attorney Opinion Letter B. Copy of letter dated November 6, 2000 from Mayor Partyka as it pertains to this Agenda Item. e. An excerpt from the "unapproved" (at the time that this Agenda Item was produced) Minutes from the October 30, 2000 Special Meeting. D. Copy of the October 23, 2000 Agenda Item. E. Copy of the Mayor's October 17, 2000 letter. COMMISSION ACTION: S:\City Hall\Agendas, Agenda Items, Minutes\Agenda Items\Calendar Year 2000\November 2000\November 27, 2000\City Manager's Contract.doc A TT ACHMENT "A" THIS AGENDA ITEM WILL BE AVAILABLE IN YOUR MAILBOXES ON FRIDA Y. ATTACHMENT "B" Nov-07-00 ll:5lA 407-359 0595 CITY OF WINTER SPRINGS, FLORIDA 1126 EAST STATE ROAD 434 WINTER SPRINGS, FLORIOA 32708-2799 Telephone (407) 327-1800 OFFICE OF THE MA VOR PAUL P. PARTYKA November 6, 2000 Ron McLemore, City Manager Re: Agenda items to be added for November 13 Commission Meeting Dear Ron: Please add the following items to tbe agenda. Please place under tbe Regular Agenda with appropriate department. Each item should have its own letter designation with supporting background. ITEM: REQUESTS A DECISION FROM THE CITY ATIORNEY ON SECTION 5.02 fN THE CITY CHARTER AS IT PERTAINS TO SEVERANCE PAY FOR THE CITY MANAGER AND DOES IT CONFLICT WITH THE CURRENT CITY MANAGER CONTRACT? WHAT ARE THE OPTIONS IF IT DOES? See attached. ITEM: STAFF MEMBERS AND THE SUNSHfNE LAW See attached ITEM: STATUS OF SIGNALIZATION ON KEY INTERSECTION, MORE SPECIFICALLY, VISTA WILLA DRIVE AND WfNDfNG HOLLOW I P ARKS TONE ENTRANCES Background data to be provided by staff. RegVv 0 Paul P. PartYk~ Ma yor CC CITY CLERK t-.lnlJ-V\7-?V\V\V\ 1 1 ::::>1 4117 l~q 0~g5 %% PoOl P.01 ATTACHMENT "C" '.',.- . -. CITY OF WINTER SPIUNGS AGENDA CITY COMMISSION SPECIAL MEETING - OCTOBER 30, 2000 (CONTINUATION OF THE OCTOBER 23,2000 REGULAR MEETING) PAGE 7 OF 12 REGULAR E. Mayor Paul P. Partyka Requesting Two Items To Be Placed On The Agenda For Discussion. Tape 2/Side A Discussion on the City Manager's Contract, regarding the severance clause. Attorney Garganese said that he could have an Opinion on this in "less than a month." Deputy Mayor Gennell added, "We will most definitely have the City Attorneys' Opinion by the time the Charter Review process reaches us." Manager McLemore stated "I think you would be well served to let your Attorney do a good extensive job. Even if you went to declaratory judgement, I think it becomes very helpful to the Court, to see a nice piece of work put in front of them, for consideration. And, obviously I would like to see the results of that too." '\ The consensus of the Commission was to have the City Attorney work on this issue. The second issue dealt with the Grizzley spray fields. Commissioner McLeod stated, "I would ask the City Manager to please, start bringing some recommendations back to us - let's not let it be an eleventh hour decision that we have to make." Manager McLemore said that they would come back with a report on 2ih of November. Commissioner Miller then stated, "Just for the record, I do recall us going through this to a great extent, with hearings and hearings and hearings and I also recall representatives from the highlands being here and making a comment to us that 'yes, they basically had no problem with it, of course they had to get the approval of the board. A lot of people seem to have forgotten that and this is not a half baked issue that we just decided we're going to send all the people over there, and we're not going to tell them about it. I believe there was a breakdown in several areas, and one of them may have been within the highlands itself, regrettably. That doesn't change the issue - i don't think we should go back there next year." Commissioner Miller then stated, "We should make a Resolution that we're not going to put anything in the perc pond on Shepard Road, for the next two to three years, or we will not consider putting anything in there, that would involve an imposition on the neighborhood, of any type." ATTACHMENT "D" City Commission Special Meeting October 3, 2000 City Manager Department Agenda Item "8" COMMISSION AGENDA ADD-ON ITEM E CONSENT INFORMATIONAL PUBLIC HEARING REGULAR X 10/23-00 Meeting MGR~DEPT Authorization REQUEST: Mayor Paul P. Partyka requesting two items to be placed on the agenda for discussion. PURPOSE: The purpose of this agenda item is discussion of two issues, the legality of the severance provisions of the City Manager's contract and the future use of spray fields on Shepard Road for the Grizzly Football League. CONSIDERATION: 1. City Manager Contract: A question was raised by a local citizen as to the legality of the severance provision of the City Manager's Contract. The City Attorney has been asked to review this question. 2. Grizzly Football/Shepard Road Spray Fields: Several citizens have written letters to the city regarding the future use of the Shepard Road spray fields site as a practice area for the Grizzly Football League. FUNDING: Not applicable. RECOMMENDATION: It is the recommendation of the Mayor that the Commission discuss these items 10 the October 23, 2000 Commission meeting. ATTACHMENTS: October 17,2000 lettcr of Paul P. Partyka Sample letter of responsc to citizens COMMISSION ACTION: ATTACHMENT "E" Oct-IS-DO 09:53A 407-359 0595 . ,j\f'lTE'1l' ~., .'--, ~'" (j/.. '.~ )...(k,'\..,~J', \'2. t { .~.\ \ C1 U .-:- -- i )Ul . \1N"orrc:.-...d\.. ;./ , 1'1<;" '-/' '-... . '~,.._.._/",: lQRIO CITY OF WINTER SPRINGS, FLORIDA 1126 EAST STATE ROAO 434 WINTER SPRINGS, FLORIDA 32706-2799 Telephone (407) 327-1600 OFFICE OF THE MA VOR PAUL P. PARTYKA October 17,2000 Ron McLemore City Manager Re: Agenda Item for October 23 Commission Meeting Dear Ron: Please add the following agenda item under the Mayor's Office: I. Item: Requests clarification from the City Attorney on Section 5.02 in the City Charter as it pertains to severance pay for the City Manager. Does it conflict with the current City Manager contract? What are the options if it does? A citizen at the Commission Meeting of September 25 raised this issue. The City Attorney was requested to have the answer by the next meeting. 2. Item: Requests response from the recreation department I City Manager on use of the spray fields in the Highlands Community and whether there will be any plans for future sports fields' development. This issue continues to come up and we must respond to this issue clearly and directly for the residents of the community. This will ensure the correct facts for the public. Re~~LQ paUI~!;a ~ Mayor CC City Clerk /1r-;~~-} -~(~(l rAc,q{~ %% PoOl P.01 BROWN. WARD, SALZMAN & WEISS, P.A. ATTORNEYS AT LAW Usher L. Brown · John H, Ward · Gary S, Salzmano Jeffrey S. Weiss Suzanne D' Agresta Anthony A. GarganeseO Scott D, Danahy James G. Vickaryous Allison Carmine McDonald Alfred Truesdell Arthur R, "Randy" Brown, Jr, William A. Davis, Jr, III North 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 Dl\~.~ s k) ~ -U-- &- L..N j tl~ ~~(-I I \'1 rI Or'- i:Jj ~f U::J · Board Certified Civil Trial Lawyer o Board Certilied Business Litigation Lawyer o Board Certified City, County & Local Government 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: 1. Introduction Several citizens have claimed that Section 5.02 ofthe 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 for in an employment contract for a definite term of employment. ~ayorPauIP.Partyka ~embers 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 ~anager, Ronald W. ~cLemore ("~cLemore"). On November 28, 1995, the City Commission directed then City ~anager John Govoruhk and former City Attorney frank Kruppenbecker to negotiate an employment contract, consistent with law and the Winter Springs City Charter, with ~cLemore for the position of City ~anager. On January 22, 1996, the City Commission 1 approved a three (3) year employment agreement with ~cLemore for the position of City ~anager ("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 ~anager is terminated for cause or resigns. On September 16, 1999, the City Commission2 approved a second employment agreement with ~cLemore 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. I 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. Mayor Paul P. 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. III. 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 gi ve 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 ofthe 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 Mayor Paul P. 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: Mayor Paul P. 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 5.0 I 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 Colum b us, Ga" 442 So. 2d 321 (Fla. 3rd DCA 1983); Perri v, Byrd, 436 So. 2d 359 (Fla. 1 st 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 5.0 I 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 ~ayorPauIP.Partyka ~embers 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 ~cLemore for the position of City ~anager. 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 ~anager is terminated by the City Commission when the City ~anager 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 ~anager 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 ~anager is terminated for cause. There is, therefore, no guarantee that the City ~anager 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 ~cLemore 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 ofthe 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, lnc, 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 aI., 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 ~anager . ~ayorPaulP.Partyka ~embers 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. 1 trust this answers the City Commission's inquiry within the full context of existing legal authority. '/!, Anthony A. Garg~ City Attorney . AAG:kj F:\DOCS\City of Winter Springs\Legal Opinions\city mgr severance