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HomeMy WebLinkAbout2001 05 29 Consent C Resolution 2001-14 COMMISSION AGENDA ITEM C Consent X InfOlmational Public IIearing Regular May 29.2001 Mecting r tiffi{f}/O I Mgr. I Att. I Dept. REQUEST: The City Attomey requests the City Commission consider approving Resolution 2001-14 in accordance with Section 286.0115, Florida Statutes, which would establish a procedure Lo remove the presumption of prejudice arising from ex-parte communications with local City officials. PURPOSE: The purpose of this Agenda Item is to adopt the procedure set forth in Section 286.0115, Florida SWJuJe.\', whieh would remove the preswnption of prejudice arising from ex-parte communications ""i.th local City officials who recommend or take quasi-judicial actions as a memher of a hoard or commiSSion. APPLICABLE LA WAND PUBLlC POLICY: Jennings v. Dade County, 589 SO.2d 1337 (Fla. 3d DCA 1991). Section 286.0115, Florida Statute.... CONSIDERA TrONS: The Court stated that ex-parte communications (i.e. relevant communications outside of the quasi- judicial hearing) in quasi-judicial proceedings are presumed prejudicial. Page 1 of 2 Ln response to Jennin[:s. the Florida Legislature adopted Section 286.0115, Florida Statutes, which establishes a procedure to remove the presumption of prejudice regarding such ex-parte communications. Generally: if Resolution 2001-14 is approved, quasi-judicial boards and commissions of the City could remove the preswuption of prejudice by disclosing the subject of the ex-parte communication and the identity of the person, group, or entity with whom the communication took place. The disclosure mu..",t he made a part of the record before tinal action on the matter is taken. Further, written communications and expert opinions that relate to a quasi-judicial action received by a board or commission member outside of (he hearing must be made a part of the record before final action on the matter. Site visits and independent investigations conducted by board and commission members must :l150 be made part of the record before final :lction on the matter. STAFF RECOMMENDATION: The City Attonley recommends that Rtsolulion 2001-14 be approved. ATTACHMENT: Resolution 2001-14. Section 286.0115, Florida Statutes. COMMlSSION ACTION: F:\DOCS\Ciry of Winter SllriJl€-S\Agclld~\Ex'p!J1e resolulion.kj Page 2 of 2 ~> RESOLUTION NO. 2001-14 A RESOLUTION OF THE CITY OF WINTER SPRINGS, SEMINOLE COUNTY, FLORIDA; ADOPTING THE PROVISIONS OF SECTION 286.0115, FLORIDA STATUTES, THEREBY REMOVING THE PRESUMPTION OF PREJUDICE FROM EX-PARTE COMMUNICATIONS WITH THE CITY COMMISSION MEMBERS AND OTHER CITY BOARDS; ESTABLISIDNG A PROCESS TO DISCLOSE EX-PARTE COMMUNICATIONS; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF PRIOR INCONSISTENT RESOLUTIONS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, government in Florida and the City of Winter Springs is conducted in the Sunshine pursuant to Chapter 286, Florida Statutes; and WHEREAS, the public should be able to voice its opinion to the elected Commission members; and WHEREAS, elected Commission members are presumed to perform their duties in a lawful and proper manner; and WHEREAS, quasi-judicial decision making must be based on competent substantial evidence of record; and WHEREAS, the City Commission members of the City of Winter Springs, Florida and other City Boards have been obstructed or impeded from the fair and effective discharge of their duties and responsibilities due to the expansive interpretations of Jennings v. Dade County, a decision rendered by the Third District Court of Appeals for the State of Florida; and WHEREAS, the State of Florida, pursuant to House Bill No.5, has adopted and created. Section 286.0115, Florida Statutes, to provide access of the public to local public officials and provides a procedure for requiring disclosure of ex-parte communications; and WHEREAS, Section 286.0115, Florida Statutes, provides that a municipality may adopt City of Winter Springs Resolution No.2001-14 Page I of 2 by Resolution the authority and procedures set forth therein to remove the presumption of prejudice from the ex-parte communications. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA, AS FOLLOWS: SECTION 1. Ex-Parte Communications Permitted. Section 286.0115, Florida Statutes, is hereby adopted in its entirety for the purposes of removing the presumption of prejudice from ex-parte communications with City Commission members and other City Board members of the City of Winter Springs, Florida, and for the purpose of adopting the procedures set forth in Section 286.0115, FLorida Statutes. SECTION 2. Repeal of Prior Inconsistent Resolutions. All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of the conflict. SECTION 3. Severability. Should any section or provision of this resolution, or any portion hereof, any paragraph, sentence, or word be declared by a Court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereto as a whole or part thereof to be declared invalid. SECTION 4. Effective Date. This Resolution shall become effective immediately upon adoption by the City Commission of the City of Winter Springs, Florida. RESOLVED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the 29th day of Ma A'~:rEST:C J C: I J~ ~.~. i\ndrea Lo . o-Luaces, City Clerk F:\DOCS\City of Wi ler Springs\Resolulions\OPT -OUT JENNINGS.doc City of Winter Springs Resolution No. 200 I -14 Page 2 of 2 t I,' ....- .,1286.0115 Access to local public officials; quasl- pdicia( proce13dlngs on local government lAnd use Il\.ltlers.- . . (11(.1) A county or munrclpalrly mJy adopl an ordi- ~e or resolution removing the presumption 01 preju- jcB [r0m ex parte communic.Jtions with local pubhc offi,ial~ by establishing a process to disclose ex parte ccmmunicalions with such otficlals pursuant to this subsection or by adopting an alternative process for such cisclosure. However. this subsectIon does not -eQuire a Counly or municipality 10 adopt any ordinance ~r resolution establishing a disclosure process. (0) As used in this subsection, the term 'local public ~cial' means any elected or appointed public oHicial ~olding a county or municipal office who recommends )f!akes quaSI-judicial aellun as a member of a board or ,:cmmlssion. The term does not incluce a member of 1Ie board or commission of any slate agency or author- ,1'1'. (c) Any pF.f$on not otherwIse prohlbl!ec by slatu:e. charter provision. or ordinance m.:lY discuss with any 'ocal public official the merits 01 any maner on wnich JClion may be laken by any board or commission on ...nich lhe local public official is a member. II adopled by :ounly or munIcipal ordinance Or resolution. adherence !o \ha following procedures shall remove the presump- ~cn of prejudice arising Irom ex parte communications ...rth local publiC officials. 1 The substance of any ex parte communication "nh a local public offiCIal which rclalCS to quasi-judicial dction pending before the official IS not prosumed prei- \jdicia/to thl3 action if the subjecl of Ihe communicalion and Ihe identity 01 lhe person, group. or enlity with ....hom the communication took place is disclosed and :nJde a part olthe record before final achon on the mat- ;6(. 2, A local public official may read a written commu- nication from any person. HowQver, a wriuen communi- calion thaI re/ales 10 quasl-ludlClal action pending ~p.t().rc a local public offil:ial shall not be presumed prej. IJdlClJllo the action. and such wnllen communicatior: shall be made a part 01 the record before final action on t'le maltP.r. J. Local public ollicials may conduct investig.:!' tons !lnd sits visilS and m.,y receIve expert opinions r~ardlng quasi-judicial action pending before them Such activities shall not be presumed prejudicial 10 the :CbOn If the exislence o( the investigation, site vlsil, or xper1 opinion is made a part 01 the record before final ~C1I/)n on the maner, 2 4. Disclosure made pursuanllo subparagraphs'.. .. ;j~d 3. must be made uefore or during the public ~eelln;) al which a vote is laken on slJch matters. so al PElr!:ons whO have opinions conlrary to those CELLANEOUS PROVISIONS Ch. 286 'I ... expressed in the ox parte communication are given a reasonable opportunity 10 refute or respond to the com- rnunfcallon. This subsection does not subject local pub- liC officials to pan III 01 chapter' 12 for not complying Wilh this paragraph. (2)(<1) Notwithstanding the provisions of subsection (1), a county or municipality may adopt an ordinance or resolulion establishing the procedures and provisions 01 this subsection for Quasi-judicial proceedings on local government land use maners. The ordinance or resolution shall provide procedures and provisions identical 10 this subsec1ion. However, this subsection does not require a courry or municipalIty to adopt such an ordinance or resolution, (b) In a qUJSi-judiciaj proceeding on local govern- ment 'Jnd U69 matters, a per::;on who appearo before rhe decision making body who i6 not a party or party. intervenor shall be allowed 10 teslify before (he decisicnmaklng body. subject to conlrol by the decisionmaking body. and may be requested to respond 10 questions from the decisionmaking body. bul need not be sworn as a witness, is nOI required 10 bt' subJ~1 tu cross-examination. and Is r,OI required to be qualified as an expert witness. The decisionmuking body shall assign weight <1nd credibility to such testi- mony as It deems appropriate. A party or party- intervenor in a Quasi-judicial proceeding on local gov- "'rnmen! land use matters. upon request by another party or party-intervenor, shall be sworn as a witness, shall be subject to cross-examinalion by olher parties or party-intervenors. and shall be required 10 be quali- fied as an expert witness. as appropriate. (c) In a quasi-judicial proceeding on local govern- menl l.:tnd u.sc mailers. a person may not be precluded from communicating direclly with 8 member 01 the decIsIon making body by application of e x parte com- munication prohibilions. Disclosure of such communi- cations by a member of the decision making body is not required. and such nondisclosure shall not be pre- sumed prejudicial to lhe Clecislon of the decisionmaking body. All deciSions of the decisionmaKifl9 body in a quasi-judicial proceeding on local goV'ernmenlland use mailers must be supported by substantial, compelent eVidence in the record pertinent 10 the proceeding, irre- spective of such communications. (3) This secllon does not reslrict the authority 01 any board or commiSSion to eSlablish rules or proce. dures governing public hearings or contacts with local publiC ol1icials. 11i'Slor"f.-::_ I,':" '~l ':i~ So .J' "n. ~"<Cl. n I.~:~;~ ",' .';""\' " ~~ "(0:'.' .... " . " ...... . .,~~~4.:1U::~"