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8-8-11 MINUTES REGULAR CITY COMMISSION MEETING August 8, 2011 CITY HALL, 800 SEMINOLE ROAD Attendance IN ATTENDANCE: Mayor Mike Borno City Attorney Alan C. Jensen Mayor Pro Tem John L. Fletcher City Manager Jim Hanson Commissioner Jonathan Daugherty City Clerk Donna L. Bartle Commissioner Paul Parsons Recording Secretary Nancy E. Bailey Commissioner Carolyn Woods Call to Order/Pledge Mayor Borno called the meeting to order at 6:00 p.m. Commissioner Daugherty gave the Invocation, followed by the Pledge of Allegiance to the Flag. Approval of Minutes 1. Approve the minutes of the Regular Commission Meeting of July 25, 2011. Motion: Approve the minutes of the Regular Commission Meeting of July 25, 2011, as written. Moved by Daugherty, Seconded by Fletcher. Votes: Aye: 5 — Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 MOTION CARRIED Courtesy of the Floor 2. Courtesy of the Floor to Visitors. Mayor Borno opened the Courtesy of the Floor to Visitors. He welcomed the audience and explained the process for public comments. Sally Clemens, 1638 Park Terrace West, addressed the Commission regarding Kenneth Wise's request at the previous meeting. She stated, according to the staff report, Mr. Wise's addition to his home will not meet Atlantic Beach codes. She asked if staff has made any suggestions that would allow Mr. Wise to add to his house and meet our standards. She stated Atlantic Beach needs to have a diversified working population living in our City. She asked if there could be a waiver if immediate neighbors study and approve his plans and sign a petition to permit this modification. She also discussed a suggestion made at the last meeting regarding having local businesses involved with the signage ordinance. She suggested notifying businesses through the water bill, leaflets, phone calls and group business meetings. She also suggested inviting walkers and drivers to these meetings, as well as business owners in other cities who might enlighten our city with what has worked and not worked in their cities. She also suggested that street numbers should be required to help in locating businesses in our City. She further added that on July 27, 2009 a resolution supporting the recognition of the use of San Pablo Island as a descriptive phrase for the area known as the beaches of Jacksonville was passed, stating our Commission was ahead of the game by passing this in 2009. No one else from the audience spoke so Mayor Borno closed the Courtesy of the Floor to Visitors. August 8, 2011 REGULAR COMMISSION MEETING Page 2 Unfinished Business 3. Unfinished Business from Previous Meeting from Previous A. City Manager's Follow -up Report. Meeting Mr. Hanson stated the staff report on the sign ordinance is taking a little more time than anticipated and will be presented at the next meeting, rather than tonight. He further reported on the complaint from Kenneth Wise regarding being denied a building permit to build an addition on to the back of his townhouse. He agreed there is a setback problem but there is a process by which someone can get a rear yard setback variance by going through the Community Development Board. He further stated he does not agree with staffs interpretation of the applicability regarding the duplex and townhome construction. He stated his understanding is a bit different and perhaps it is not worded as well as it should have been. He read the portion of the Code as it relates to Mr. Wise, explaining the reason this was written was because of initial construction. He stated at the time, before this was written, there were a few places in the core city where people had much older houses that were zoned duplex but had a single family residential house on the lot. He stated they came in and built another residential house and connected it with a breezeway and it was considered a duplex, which was a loophole in our City Code because it was not intended to allow people to double the density on an existing single family lot, even if zoned duplex. He explained the ordinance was adopted requiring that if you are going to build a duplex you have to build it at the same time, not wait 50 years and then add on something that doesn't look the same and call it a duplex. He stated, in his view, this was never intended to apply to a small addition, particularly one that would be on the back of a unit and not seen from the street. He stated even if the Commission agrees with his interpretation of that provision, Mr. Wise still has a rear yard setback problem and staff doubts that the Community Development Board would grant him the waiver given the particulars of his request, but he has the right, if the duplex provision was not in his way, to request a variance. He asked if the Commission had a difference with his interpretation of what this was written for. Commissioner Parsons stated when that law was passed wasn't it just for the core city because of the density. Mr. Hanson stated, no, there was a down zoning of some duplex areas; it was a rezoning itself done about the same time but this ordinance applied citywide. Commissioner Parsons stated he understands that, but they didn't allow duplexes anymore in the core city. Mr. Hanson stated that was correct. Commissioner Woods stated she is assuming there is no more duplex zoning in the core city and there are already duplexes on those lots that are zoned for duplexes. Mr. Hanson stated there was a substantial area of the core city in 1999 that was zoned for duplexes, some of them were constructed as duplexes, most of them were not and the Commission went through a process to down zone the property to single family residential but gave people a certain amount of time to proceed with a duplex if they chose to do it in the old zoning. He stated that has long since expired. Commissioner Woods asked if you have a duplex lot and have a duplex on it, can you rebuild it. Mr. Hanson stated yes. Commissioner Woods asked if you have a duplex lot and you only built one unit, then you no longer have a duplex lot. Mr. Hanson stated it was duplex by virtue of the zoning, but the zoning has changed. He stated there are still duplex August 8, 2011 REGULAR COMMISSION MEETING Page 3 areas zoned for two- family construction but a substantial portion of the core city area was clown zoned. Commissioner Woods asked if it was different for the core city or is it the same citywide. Mr. Hanson stated the Commission changes zoning from time to time and when it is changed if someone has plans in process they are allowed to go ahead with their plans, so as not to cause economic harm. Commissioner Fletcher stated Mr. Wise was told by staff that he was not able to apply for a variance but City Manager Hanson stated he disagrees with staff on that interpretation of the ordinance and Mr. Wise is able to apply for a variance. He stated he believes what the City Manager is asking for consensus from the Commission on is whether Mr. Wise is allowed to apply for a variance. Mr. Hanson further explained if you assume the interpretation Erika Hall first took on this issue of the construction of the duplexes at the same time, that would prohibit that, then that is not something that you can vary, where a rear yard setback you can. He stated he does not agree with that interpretation and believes it is a stretch for what the language says, so unless someone disagrees, that is how he will instruct staff. He stated he wanted to bring that to the Commission's attention to make sure they are all on the same page. Mayor Borno asked if the Commission had any disagreement to that. There was no disagreement from the Commissioners. Consent Agenda 4. Consent Agenda ALL MATTERS LISTED UNDER THE CONSENT AGENDA ARE CONSIDERED TO BE ROUTINE BY THE CITY COMMISSION AND WILL BE ENACTED BY ONE MOTION IN THE FORM LISTED BELOW. THERE WILL BE NO SEPARATE DISCUSSION OF THESE ITEMS. IF DISCUSSION IS DESIRED, THAT ITEM WILL BE REMOVED FROM THE CONSENT AGENDA AND WILL BE CONSIDERED SEPARATELY. SUPPORTING DOCUMENTATION AND STAFF RECOMMENDATIONS HAVE BEEN PREVIOUSLY SUBMITTED TO THE CITY COMMISSION ON THESE ITEMS. A. Acknowledge receipt of the List of New Business Tax Receipts issued in July 2011. B. Award the Annual Contract for Large Meter Testing and Repair, Bid No. 1011- 19 to Reed & Shows Meter Repair and Supply at the bid prices. C. Authorize MUSCO to retrofit the recreational lighting on the baseball fields at Russell Park for $53,000.00. Mayor Borno read the Consent Agenda. Commissioner Fletcher pulled Item C. Motion: Approve Consent Agenda Items A and B, as read. Moved by Parsons, Seconded by Fletcher. Votes: Aye: 5 — Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 MOTION CARRIED August 8, 2011 REGULAR COMMISSION MEETING Pate 4 Commissioner Fletcher asked what the source of the $53,000 was. Mr. Thompson explained it comes from the Federal Energy Grant. Commissioner Woods stated there is $234,000 of grant money and we are using $53,000. She asked what the remainder will be used for. Mr. Thompson explained a portion will be used to do energy audits at eleven city -owned buildings, replace approximately 22 HVAC systems, upgrade several vehicles to hybrids, purchase one Chevy Volt, solar hot water in the fire department, among other things. He stated there is a matching amount of $103,000 from Jacksonville so the total amount of grants is $338,000. Motion: Approve Consent Agenda Item C, as read. Moved by Fletcher, Seconded by Parsons. Votes: Aye: 5 — Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 MOTION CARRIED Committee Reports 5. Committee Reports None. Action on Resolutions 6. Action on Resolutions None. Action on Ordinances 7. Action on Ordinances None. Miscellaneous 8. Miscellaneous Business Business A. (Public Hearing) UBE- 2011 -03, request from William M. Dutter, DuttsOne Productions LLC, for a use -by- exception to permit an establishment engaged in the recondition, repair, restoration and sale of used automotive vehicles consistent with Section 24- 112(c)(4) and (5) to be located within the Light Industrial and Warehousing (LIW) zoning district at 157 -B Levy Road. Building Official Mike Griffin summarized the use -by- exception, stating the Community Development Board unanimously approved the use -by- exception to allow storage and automotive repair. He stated storage is allowed but automotive repair requires a use -by- exception. He showed several slides of the subject property and stated Mr. Dutter was here if the Commission had any questions for him. Mayor Borno asked if the fenced -in compound is also gated so it can be secured in the evenings. Mr. Dutter stated it was gated. Commissioner Daugherty spoke against the use -by- exception, stating the area looks like a junk yard driving past there and he is concerned this would add to the problem. He asked if the unlicensed vehicles being stored is a violation of any codes and have they had any communication with the landlord of the property. Mr. Griffin stated Code August 8, 2011 REGULAR COMMISSION MEETING Page 5 Enforcement checked out Mealy Street today and most all of the vehicles are unlicensed and untagged and they were stickered and identified for removal. Mr. Duffer stated any vehicles they are working on will not only be inside the fence but inside the warehouse. He stated everything they have stays inside the fence and it is locked up at night. Commissioner Daugherty stated he could consider approving this with the conditions that it be a provisional approval that they can look back at in a year to assure there aren't any code enforcement issues and that all vehicles are stored inside the fenced area. Mayor Borno explained the application states and Mr. Dutter has stated that everything will be inside either the building or the fence, which is gated. He stated a conditional approval just means they have to readdress this again. He stated if they approve it, then it is a code enforcement issue that would be dealt with if there was violation of the specific approval. He stated he believes they are smarter to give the outright approval. Motion: Approval with the provision that all vehicles being worked on or stored be kept inside the fenced area and will be provisional and reviewed in one year for permanent approval. Moved by Daugherty Motion died for lack of second. Motion: Approve UBE- 2011 -03, a request for use -by- exception by William M. Dutter, DuttsOne Productions LLC, to permit an establishment engaged in the recondition, repair, restoration and sale of used automotive vehicles, consistent with Section 24- 112(c)(4) and (5), to be located within the Light Industrial and Warehousing (LIW) zoning district at 157 -B Levy Road. Moved by Woods, Seconded by Fletcher. Mr. Dutter reiterated they intend to keep everything behind the fence. Mayor Borno opened the Public Hearing. No one from the audience spoke, so he closed Public Hearing. Commissioner Daugherty stated this is a major artery people travel down every day and already there is a problem with code enforcement in the area. He stated although he believes that Mr. Dutter wants to have all the vehicles inside the fence, he believes it would be responsible of the Commission to amend the motion to require all vehicles be stored behind fence. Commissioner Woods asked about the issue of cars parking in the right -of -way. Mr. Griffin stated any car that is on the right -of -way must be operable and have a current license. He stated, by our code, any car that is worked on by a mechanic must be inside the fenced area already. He further stated in the Light Industrial and Warehousing zoning districts, it requires all of the materials to be located within a fenced area. August 8, 2011 REGULAR COMMISSION MEETING Page 6 Votes: Aye: 5 — Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 MOTION CARRIED B. Decision on Employee Health Insurance Plan and Cost Sharing. Human Resource Manager George Foster stated, since the last Commission meeting, they have had three new items come up. He explained the first was a proposal from an insurance agent. He stated he and the City Manager met with the agent and it turned out that the proposals were illustrations and there are no new proposals that will resolve our health insurance issues. Commissioner Fletcher asked if our insurance was shopped this year to other carriers. Mr. Foster stated that is the second new item. Mr. Foster stated the second new item is the bidding out of health insurance. He explained this year he did not bid our health insurance based on our history for the last two years, our experience levels and our pool arrangement with our current carrier. He stated this is one of the decisions the Commission will need to make as to whether or not they desire staff to go out at this time and bid out the health insurance. If they do, it will have to be an implementation date of January 1, because there is not time at this point to do an October 1. Commissioner Woods stated she thought it was decided that the optimum initiation date would be November, as related to our budgeting and employees signing up. Mr. Foster stated our current insurance carrier will not give us an extension; we have to renew on October 1 with them and, therefore, will have to go with an October 1 renewal. He stated if we can get a better proposal then we can cancel the current carrier and renew with another carrier. He stated at that time we can go with whatever length of policy we would like. Discussion ensued regarding optimum renewal dates. Mr. Foster explained the funding arrangement choices, stating the Commission needs to decide which plan they want for the employees and which funding arrangement to be effective October 1. Motion: Approve Column E. Moved by Parsons, Seconded by Woods. Commissioner Parsons explained his reasons for selecting Column E, stating the difference is approximately $70,000, which equates to about $5.00 /year/home or 45 cents /month. He also stated the contingency fund has well over 40% in it and we have always been mandated to just keep 25 %. He stated it will be good for morale. He praised the employees stating, as a whole, they do a fantastic job and their response time to everything we have ever done is spectacular. Commissioner Daugherty stated there is no way we can do this. He stated they have a balanced budget right now with zero increase for the City in health insurance. He stated his reasons for not taking money from the contingency fund. He stated unfortunately we live in an environment where health insurance costs are rising. He August 8, 2011 REGULAR COMMISSION MEETING Page 7 stated nobody gets 95% of their healthcare paid for, or very few people. He stated there is the argument that we are the public sector and we don't get paid as much. He stated if they were private sector there would be layoffs. He stated yes, we haven't had pay increases for four years but if we start spending the money we have set aside he believes we are setting ourselves up for financial problems down the road. He stated we are not in a good position to be spending money like this. He stated during the workshop he was going for zero percent but after hearing from the employees and reflecting on his own experiences, he knew we had to do something. He stated the most he could vote for is Column D. He stated he can't go to somebody here in Atlantic Beach and say we know you lost your job, we know you haven't gotten a pay raise, we know you lost your health insurance but these are our employees and we are going to ask you to pay a little more in taxes to make sure our employees have the same health insurance they have had all along. He stated when the people we were elected to represent are having financial problems he can't ask them to pay even one dime more. Mayor Borno stated we have several things in the wind. There will be bids going out and whether that will produce the result of better benefits and reduced cost is an if. He stated they also have to make decisions on what adjustments are going to done to the benefit plan; health and pensions. He stated there is also the supplemental insurance which is an employee -paid option that can help with out -of- pockets and deductibles. He stated they need to make a decision on what steps they want to take now in that process until they get to the end of all their adjustments. Commissioner Woods stated she recalled their goal was to get down to 90/40% and everyone has been hit by this economy. She stated she does not want to abandon that goal but would like to see us set an incremental way to get there. She believes the 5% is too much for employees to handle at one time and suggested one -half percent increase per year to meet the goal of 90 -40 phased out over a ten -year period. She stated that would give everybody time to adjust and get used to it and it shouldn't be so painful. She further stated she was not opposed to Commissioner Parsons' recommendation but believes we can do that without having the other in place as well. She stated we need to balance the approach and if our goal is to remain to getting the percentages down then they need to tie that goal in to whatever decision is made. Mayor Borno stated Commissioner Woods was correct; they did establish a goal and how they get there and how they make an adjustment is part of what he was referring to. He stated it is not just health insurance; it will be the overall benefit package. Commissioner Fletcher stated we are ultimately a customer service organization and our people are our number one asset. He stated, unfortunately, they have had their feet on the throats of the employees now for a couple of years and have not given them pay raises. He stated this is a very hard decision to make because we have to weigh what kind of a city do we want to be; do we want to have employees with high morale and good responsiveness or do we want to take the alternate course and make them resent working for the people. He stated he is inclined to help out as much as he can but wants to understand the employee supplemental plan. He stated he knows it is designed to reduce deductibles and out -of- pocket expenses, but asked what is its net effect to Plan D. Mr. Foster stated they have not gotten firm bids; the rates he has in August 8, 2011 REGULAR COMMISSION MEETING Page 8 the staff report were from Jacksonville Beach last year. He stated in order to get some firm rates, they need to know what our deductibles are going to be. He stated they can get a policy that will cover the out -of- pockets and deductibles so the rates will probably be higher than what was in the staff report. He further explained the various monthly premium increases for the employees as listed in his staff report. He stated, unfortunately, we have a lot of employees living paycheck to paycheck and they are not going to be able to afford the higher premiums and the supplemental plan. Commissioner Daugherty stated all the rhetoric has been about employees living paycheck to paycheck who can't afford this. He stated of the 113 people employed by the City, he believes there are only 3 or 4 who make under $40,000 /year who are on the family plan. Mr. Foster stated the City has 66 employees on the employee only plan, 11 on the parent/child plan, 12 on the two party (spouse), and 14 on the family plan. He stated although the people who have the family plan are normally those making the most, he stated the only reason the others are not on it is because they can't afford it. He pointed out the premium differences in the current family plan and the proposed plans. Commissioner Daugherty stated on the current plan we have now, they can't afford it so if we stay where we are they still aren't going to be on it, making the argument that there are people living paycheck to paycheck who can't afford this invalid, simply because they aren't on it now. He stated they can't afford what we have. He reiterated very few people in our society get 95% of their heath insurance covered. He stated looking at Plan D, $33 is not that big an increase for employee only; the family does jump up more, but the low wage earners we have (people making under $40,000) aren't on the plan we have right now, so keeping what we have isn't going to help them at all. He stated he believes taking that $1.9 million is irresponsible and he cannot vote for it; it was a compromise for him to go to $75,000. Dave Polovina, 2069 Lakeside Drive, Jacksonville Beach, the Agent of Record for the City's insurance, answered Commissioner Fletcher question regarding the benefit on the supplemental insurance. He stated Mr. Foster was correct that your employees can't afford to get sick, nor can they afford the premiums to cover them if they get sick because health insurance is ridiculously expensive and healthcare is ridiculously expensive. Mayor Borno called for a Roll Call vote on the motion to approve Column E. Commissioner Woods asked if they got any concessions about moving from 95/45 to 90/40. Mayor Borno stated he believes that will come about when they get into the benefit study package and they have to give advice to staff on the adjustments, but it is not tonight. Roll Call Votes: Aye: 4 — Borno, Fletcher, Parsons, Woods Nay: 1- Daugherty MOTION CARRIED Mayor Borno stated he respects Commissioner Daugherty's comments but there are several unknowns he brought up that still have to be dealt with and whether they will impact us this year or not is going to be worked on in the very near future. August 8, 2011 REGULAR COMMISSION MEETING Page 9 Motion: Authorize George Foster to go out and request quotes. Moved by Parsons, Seconded by Borno Commissioner Woods stated last year he requested other quotes and the cost was higher and since this year we have had one person have over $500,000 in bills, she can't imagine how we can get a lower quote from anyone and is concerned how much time, energy and expense we will go through to get the same answer. She stated she wants to make sure we aren't just spinning our wheels and wasting our time and money and it is worth the effort. Commissioner Fletcher stated we did not go to market this year and he believes the only negotiating hammer we can hold over our existing carrier, Cigna, is to go to market and get other quotes. He stated if you get turned down, you get turned down but if you don't undertake that effort they basically mail you your renewal quote and that's it. He stated if you have something in hand you can use that to drive down the current cost. He stated it was not done this year. Mr. Foster explained that last year we had nothing in hand, the previous year we had three major carriers including Cigna's bid. Commissioner Fletcher stated this is the problem he has when he was asking about how the bidding process was done. He stated you can't wander into the market and expect to get a response; it is the way the City is represented to the insurance marketplace that dictates how they respond. Mr. Foster stated we have a broker /agent, Dave Polovina, who is also the broker /agent for Jacksonville Beach and Neptune Beach and in the past they have used him to go to the different carriers and get us quotes and then we would negotiate with all the carriers who bid. He stated this year if we don't use the broker /agent, then he will go directly to the carriers. Commissioner Fletcher stated the decision was made not to bid, but now they are saying that decision maybe needs to be rethought. Mr. Foster explained how we get a broker /agent, stating he believes our current broker /agent is aggressive enough and knows what Jacksonville Beach and Neptune Beach are doing. Commissioner Fletcher stated he would like to give Mr. Polovina another crack at it this year. He stated he has confidence Mr. Polovina can go to market and represent us aggressively and perhaps pull something out for us. Mr. Foster stated he would also like to do that. Mr. Polovina stated what Commissioner Fletcher said was absolutely correct. He stated his objective is to get the very best cost for the City and the employees. He stated Mr. Foster asked him about going to bid this year and he stated it was his professional opinion that the City's claim experience and medical conditions are worst this year than last year and the decision was made not to go to bid. He further explained the process of the bidding procedures. Discussion ensued. Mr. Hanson explained why he recommended Mr. Foster but stated he is perfectly comfortable with Mr. Polovina getting the prices. Votes: Aye: 2 — Daugherty, Parsons Nay: 3 - Borno, Fletcher, Woods MOTION FAILED August 8, 2011 REGULAR COMMISSION MEETING Page 10 Motion: Authorize Dave Polovina to go out to market for quotes on our health insurance to be effective January 1, 2012. Moved by Fletcher, Seconded by Borno Commissioner Woods stated we are talking about going out on the market and rebidding for a year starting January 1, 2012. She asked if we will have Cigna until then. Mr. Polovina stated they are committed through September 30, 2012. He stated we are on a 30 -day notice for termination and can terminate anytime we want. He stated Cigna is obligated from October 1, 2011 through September 30, 2012. Mayor Borno asked if the person who incurred the $500,000 is no longer employed. Mr. Foster stated that person is still on our health insurance and will remain on our health insurance. He stated we have had one additional severe case and another potential severe case so our experience is probably equal to or worse than it was before Cigna renewed. Discussion ensued. Votes: Aye: 5 — Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 MOTION CARRIED Motion: Authorize providing employees with an optional Major Medical Complement Policy as provided by Jacksonville Beach and Neptune Beach. Moved by Borno, Seconded by Fletcher Commissioner Woods clarified that there is no cost to the City. Mr. Foster agreed there is no direct cost, but stated there is an indirect cost for administrative support. Votes: Aye: 5 — Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 MOTION CARRIED C. Approval of Interlocal Agreement, and Authorization for the Mayor or Designee, to execute an Interlocal Agreement with the City of Jacksonville for commercial electrical, plumbing and mechanical inspections. Mr. Griffin explained this item was approved by the Commission on March 28, 2011 and was approved by the Jacksonville Council, however, the Office of Management and Budget requested that the Agreement terminate in five years. He stated that was added to the Agreement and it is now back for the Commission's approval. Mr. Griffin answered questions from the Commission. Motion: Approve Interlocal Agreement with change to terminate in five (5) years and authorize Mayor to sign. Moved by Woods, Seconded by Fletcher. August 8, 2011 REGULAR COMMISSION MEETING Page 11 Votes: Aye: 5 — Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 MOTION CARRIED D. Designate a Voting Delegate to the Florida League of Cities Annual Conference to be held in Orlando on August 11 -13, 2011. City Manager explained the Florida League of Cities votes on their policy platform for each upcoming legislative session. He stated they want one person per City authorized to vote on the policies. He stated the only person who has signed up to go to the conference is Mayor Borno. Motion: Designate Mayor Mike Borno to be a Voting Delegate at the Florida League of Cities Annual Conference on August 11 -13, 2011. Moved by Parsons, Seconded by Fletcher Votes: Aye: 5 — Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 MOTION CARRIED City Manager 9. City Manager A. City Manager's Report. Mr. Hanson reminded the Commission of the schedule for the budget workshops as follows: August 9, August 24, August 30 and, if needed, September 6, all starting at 5:00 p.m. He stated there is also a workshop scheduled for the pension study to be held on August 22 at 4:00 p.m., before the Commission meeting. Reports/Requests 10. Reports and /or requests from City Commissioners and City Attorney City Commissioners A. Report from City Attorney answering question about obtaining services of City Attorney outside attorneys. City Attorney Alan Jensen asked Commissioner Woods if she had any questions regarding his staff report. Commissioner Woods stated she reviewed his staff report and passed out her comments (which is attached and made part of this Official Record as Attachment A) to the Commission. She went over her comments item by item. City Attorney Jensen responded that he doesn't hire anyone and the Sunshine Law does not apply. Commissioner Woods stated he interviewed and screened the applicants and only presented one to the Commission and that is exactly what the Sunshine Law is talking about. City Attorney Jensen stated he disagrees. August 8, 2011 REGULAR COMMISSION MEETING Page 12 Commissioner Parsons • Responded to Ms. Clemons comments regarding San Pablo Island, stating he has an SPI sticker on the back of his car and these stickers are now available. He stated he is all in favor of the name. Mayor Borno • Stated he is in favor of the San Pablo Island branding and believes it is unique. Adjournment There being no further discussion, the Mayor declared the meeting adjourned at 7:45 p.m. /mil Mike Borno, Mayor/Presiding Officer ATTEST: an4wt Donna L. Bartle, CMC City Clerk ATTACHMENT A Atlantic Beach City Commission Meeting August 8, 2011 Item 10 Comment [CW1]: This is true in Article 1- In From: Alan Jensen [alan@ajensenlaw.com] General Sec. 2 -1 (a) Charges the city with defending its commissioners, employees and Sent: Tuesday, July 26, 2011 10 :12 AM etc. To: Borno, Mike; jfletcher @coab.us; Woods, Carolyn; Parsons, Paul; Daugherty, Sec. 2 -1 (a) The city shall provide an attorney Jonathan to defend any civil action arising from a complaint for damages or injury suffered as a Cc: Hanson, Jim; Bartle, Donna result of any act or omission of action of any of its officers, employees, or agents for an actor Subject: City attorney duties omission arising out of and in the scope of his or her employment or function..." To all: Comment [CW2]: Sec. 2 -1(a) "Legal Commissioner Woods has asked me to explain my statements at the 7/11 commission representation of an officer, employee, or agent of the city maybe provided by the city attorney." meeting regarding obtaining the services of an outside attorney. This was in regard to Gives the city the ability to have the city retaining the services of John Dickinson as a labor and employment lawyer. I stated attorney provide this representation it does not give the city attorney the right to something to the effect that under the Charter and the Code, I can recommend who to hire. select as outside counsel and get them onboard. Comment [CW3]: The City Attorney's Sec.32 of the Charter sets forth the duties of the city attorney, and includes in (3) contract provides for the city attorney to assist "...prosecuting and defending for and on behalf of the city, all civil complaints, suits and No o hire. of obtaining speaalizedcouncil. controversies in which the city is a party." (Emphasis added) Sec. 2 -1 of the Code Comment [Cwa]: City attorney relies on requires the city to provide an attorney to defend any civil action a gainst a city officer, his own judgment of his experience for em to ee or agent under certain circumstances, and that such legal representation mak�h°��onforthe commission. P Y g � � g P make a decision for the commission. j "...may be provided by the city attorney." Although I believe these provisions would ' Comment [cws]: Mr. Jensen further allow the city attorney the authority to obtain outside counsel in certain specialized postulates that this experience qualifies as being areas of the law, I failed to mention the authority to do so as outlined in my contract the basis for his authority to obtain services. Not the City Charter, the City Code or his with the city. The failure to mention this at the 7/11 meeting was inadvertent because I contract which do not give him the had no prior notice of the issue / question that Commissioner Woods brought up at that authority to hire. meeting. Comment [CW6]: Mr. Jensen falls to mention Sec. of Resolution No. 05-13, which is my contract with the city, that when legal the Sunshine law s ons appliestaboa B or services are needed in specialized areas of the law, "...Ithe City Attorney shall assist Ithe committee. "The Sunshine Law does not City as requested by the City Commission or the City Manager in obtaining bond counsel e x O e dti t 7 ar4' tic body cat by eesta the q Y t3' t3' $ g bd l exception: a put? ublic body cannot escape the or other specialized counsel, as is necessary, at a reasonable rate of compensation." application of the Sunshine Law by undertaking over the years I have come to the commission with a request for outside to delegate the ego." I S Props ti s Occasionally Inc. Y f id Y Ll through an alter ego." IDS Properties, Inc. v. counsel, but the vast majority of the time I confer with the city manager regarding the Town of Pawn Beach, 279 So. 2d 353, 359 (Fla. of outside counsel. This is in keeping with the Charter, Code and my 4th ., T 1973), Palm Be question d i answered n, 296 sub employment P� g � Y nom., Tam of Palm Beach v. Gradison, 298 contract with the city. believe my experience with the city and in the Jacksonville legal So. 2d 473 (Fla. 1974). See also News -Press community TOV1deS me with the knowledge Publishing Company, Inc. v. Carlson, 41 So. ty �p dge to obtain the services !of qualified attorneys 2d 546, 547 548 (Fla. 2d DCA 1982) (whe in various specialized areas of the law, and to obtain those services, when necessary, at public officials delegate de facto authority to act reasonable rates of compensation. on their behalf in the formulation, preparation, and promulgation of plans on which foreseeable There are no "Sunshine Law " issues when I confer with the city manager, and at times action wifi be taken by those public offldals, other city employees, regarding obtaining the services of outside counsel. The those delegated that authority stand in the shoes of such public officials insofar as the Government in the Sunshine Law provides a right of access to governmental Sunshine Law is concerned) Specifically when proceedings of public boards or commissions, applies equally to elected and appointed v . . C v City Staff Meetings co urt in Ceps held that p paurely urtlyns City o f P of Palm Baay y the court boards, and applies to any gathering of two or more members of the same board to fact finding actions are permitted because they discuss some matter which will foreseeably come before that board for action. do not "screen applicants or make Y recommendations." Both of which Man Jensen Hopefully this addresses the concerns raised by Commissioner Woods. I would hope in did in choosing an attorney for the city, which was the future that any such concerns be addressed to me before a meeting so that I can be meetings of a then of any bn b oaarr or commissiis ion on of any properly prepared to respond, This should apply to all other officers and employees of state agency or authority of any municipality ...at the city as well. Such a procedure not only saves time, but provides better responses as t to o be official etts are be taken are - declared Fla. a. b Ch e open meetings" Sunshine Law - Statutes . Sec 286.011 1 of 2