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Home My WebLink About09-15-2008 Code Enforcement Board ConflictPage 1 of 3 Danielle Harker From: Kate Latorre [klatorre@oriandolaw.net] Sent: Monday, September 15, 2008 12:39 PM To: Danielle Harker Cc: _City Clerk Department Subject: RE: Code Enforcement Board Conflict? Attachments: Kate Latorre.vcf; Resolution 2001-14.pdf Danielle, There is no automatic conflict of interest present by this board member serving on the Architectural Review Board ("ARB") of his HOA. The main issue with this board member's dual membership is that he may visit a particular property that is subject to a code enforcement action. This may provide an opportunity for this board member to obtain additional evidence (not otherwise available to or reviewed by the other members of the Code Board during the public hearing) that he may take into consideration when casting his vote during the code enforcement board hearing. I want to point you to Resolution 2001-14, attached hereto, for guidance. This Resolution is the City Commission's official policy with regard to "ex-parte" communications. "Ex-parte" communications are generally those which occur with only one party present -- site visits are included in this definition. While the Resolution removes the presumption of prejudice from ex-parte communications, it requires that the procedures of section 286.0115, Florida Statutes, be observed. In short, if a quasi-judicial board member (such as a Code Board Member) takes part in a site visit, such visit shall not be presumed to be prejudicial to the board's action if the existence of the. site visit is made apart of the record BEFORE final acton_on. the matter is taken _b_y the board,. (See s. 286.0115(1)(c)3, Fla. Stat.) Thus, in any instance where a board member has conducted a site visit, for whatever reason, the board member should disclose on the record during the public hearing that he or she visited the site. This public announcement provides the Code Enforcement Respondent/property owner (or applicants at P&Z / BOA meetings) with a reasonable opportunity to rebut/respond to whatever evidence might be observed and applied in the board's decision. It is a fundamental due process issue and is thus, essential that this be observed. Another issue the board member should keep in mind is bias. Should he become so biased, for whatever reason, that he is unable to make a fair and impartial decision based on the facts and testimony presented at a public hearing, he should recuse himself from voting. If he can fulfill his duties on the ARB of the HOA without biasing himself on issues coming before the Code Enforcement Board, there would be no conflict of interest absent a traditional "voting conflict of interest" which is usually based on some financial interest in the subject decision. (Governed strictly by s. 112.3143, Fla. Stat.) These issues are for individual board members to be aware of and to address on a case -by -case basis. The recording secretary should be aware of the laws governing these kinds of circumstances, but it is essentially up to the appointed local officers to take responsibility for the decisions being rendered and to be aware of the laws applicable to them. I hope this clarifies the issue for you. Please call me if you require any additional information. Thanks, Kate Latorre 9/15/2008 Page 2 of 3 R01tJ%CAItGAN,r>;f" Katherine W. Latorre, Esq. Board Certified in City, County & Local Government Law 111 N. 0ranL,c Avenue, Suite 2000 P.O. Box 2571, Orlando, Florl,ia 32802-2873 Phone (407) 425-9566 Fax (407) 425-9596 Kissimmee (321) 402-0144 Cocoa (866) 425-9566 Websitc: vwv v� ,,.orlandolaw.net Email kl<atcrr _orlandolaw.net Any incoming e-mail reply to this communication will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we may not receive your reply and/or we may not receive it in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time - sensitive by means other than e-mail. Confidentiality Note: This e-mail, and any attachment to it, contains privileged and confidential information intended only for the use of the individual(s) or entity named on the e-mail. If the rewlc, o! this e-mail is not the intended recipient, or the employee or agent responsible for delivering it to the intended r(: cipient, you are hereby notified that reading it is strictly prohibited. If you have received this e-mail in error, please immediately return it to the sender and delete it from your system. Thank you. From: Danielle Harker[mailto:dharker@winterspringsfl.org] Sent: Monday, September 08, 2008 8:31 AM To: Kate !_,-..—, re CC: _City � 2,4 Department Subject: C':)dc Enforcement Board Conflict? Importa►i�c: High Kate, Kate: I receive.: a call from one of our new alternate Code Enforcement Board members last week. He is as1&...g if the City thought there might be a conflict of interest as he is on the Architectural Review Board at his HOA (which I believe is the Tuscawilla Homeowner's Association) and the Board he is on deals with complaints and urban permit applications, etc. which involves him sometin i cs going to a particular property and reviewing it. He thinks there might be a conflict of interc- . considering he is now on the Code Enforcement Board and one of the properties that he 1 : 't;ht need to review for his HOA, might also be a Case for the Board. Do you see a potentE :. , c oblem with this? Please advise. Thanks, 9/15/200,� Page 3 of 3 rani ICe .Marker Deputy CI ty Clerk City of Water Springs (407) 327-5965 f. (407) ,>=7-4753 1126 Eas! )tate Road 434 Winter c -ings, Florida 327o8 "Promise c .:y what you can deliver. Then deliver more than you promise." - Anonymous Confidentialit 1e: This e-mail. and any attachment to it, contains information intended only for the use of the individual(s) or entity named on the e- mail If the re of this e-mail is not the intended recipient, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notifie iat reading it is strictly prohibited. If you have received this e-mail in error, please immediately return it to the sender and delete it from You( system. mk you. 9/15/2008 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; ESTABLISHING 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 ill 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. RE, SOLVED by the City Commission of the City of Winter Springs. Florida, Jr. a regular meeting assei lbled on the 29th day of May 24001. l� Paul Partyka, Mayor C A :TEST': � � �---� -Andrea _.)-Luaces, City Clerk FADOCS\City of Wester Springs\Resolutions\OPT-OUT JENNINGS.doc City of Winter Springs Resolution No.2001-14 Page 2 of 2