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1-23-12 MINUTES REGULAR CITY COMMISSION MEETING January 23, 2012 CITY HALL, 800 SEMINOLE ROAD IN ATTENDANCE: Mayor Mike Borno City Attorney Alan C. Jensen Mayor Pro Tem Maria Mark City Manager Jim Hanson Commissioner Mark Beckenbach City Clerk Donna L. Bartle Commissioner Jonathan Daugherty Recording Secretary Nancy E. Bailey Commissioner Carolyn Woods Call to Order /Pledge: Mayor Borno called the meeting to order at 6:30 p.m. Commissioner Daugherty gave the Invocation, followed by the Pledge of Allegiance to the Flag. 1. Approve the minutes of the Regular Commission Meeting of January 9, 2012. Motion: Approve the minutes of the Regular Commission Meeting of January 9, 2012. Moved by Daugherty, Seconded by Mark Votes: Aye: 5 — Borno, Beckenbach, Daugherty, Mark, Woods Nay: 0 MOTION CARRIED 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. Dorothy Kerber, 365 1st Street, addressed the Commission regarding lack of participation of the citizens of Atlantic Beach. She stated some of them could be serving on committees but they have never taken the time to fill out the form necessary to show what their interest is or what their expertise might be that would be helpful to the City. She stated she believes this is really appalling. She stated she was brought up to vote as soon as she was old enough and has participated in every election since she was old enough to vote. She stated she believes this is a real privilege in our country and believes so many of our people have ignored it. She stated she has a list of all the mayors and commissioners who have served since 1956. She stated she is very interested in what is happening in our City now, as she was in 1956. She stated she has served on committees, the Board of Adjustments and the Hospital Board and is not one of those people who says you should do so and so. She stated she does things because she knows they are needed and we need people who will take the time to do it. She stated she has watched the commission over the years and every mayor has let people who are in the audience know that we have certain standing committees. She stated those committees are necessary to carry on the planning process for so many things that happen in our City. She stated many people say that they just don't have time. She stated they have time for the things they want to do and if you don't take the time to do the things that need to be done, then don't blame somebody else. She stated she has never been in the position to blame somebody else for not doing something. She stated she usually has more things on her plate than she can handle. She stated she is very disturbed about somebody wanting to know exactly how we have people appointed to committees. She stated the Mayor has always been the one who would bring up people to possibly serve because of their background. He stated then if the Commission January 23, 2012 REGULAR COMMISSION MEETING Page 2 doesn't like somebody that has been selected they can discuss it at the Commission meeting, but the Mayor has appointed Committee members since 1956. She then gave history on the previous mayors. She stated what bothers her the most is that we have people who live here for 15 and 20 years and all of a sudden they are very interested in what is happening in City Hall and there have been remarks made that they are hiding it, there is no transparency. She stated if you had been here at the meeting you wouldn't need any more transparency than we get. She stated if there is something she has a question about, she has never been refused answers when she came to City Hall and asked a direct question. She stated she has had people who have told her they can't get information. She stated she doesn't understand that; if you are nice to everybody, you don't have any problem. She stated if you go up there and tell them off, then she can understand they might be a little bit slow but you will still get the information. She stated this is one of those things she has had on her mind and her conscience about not having people understand that you have to treat people the way you want to be treated. She stated we have so many talented people in this City but so many of them are doing other things that they never offer their time to do something for the City. No one else from the audience spoke so Mayor Borno closed the Courtesy of the Floor to Visitors. 3. Unfinished Business from Previous Meeting A. City Manager's Follow -up Report. None. 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 Monthly Financial Report and Building Department Report for 2011. Mayor Borno read the Consent Agenda. Motion: Approve Consent Agenda Item A as read. Moved by Woods, Seconded by Daugherty Votes: Aye: 5 — Borno, Beckenbach, Daugherty, Mark, Woods Nay: 0 MOTION CARRIED 5. Committee Reports None. 6. Action on Resolutions None. January 23, 2012 REGULAR COMMISSION MEETING Page 3 7. Action on Ordinances A. ORDINANCE NO. 20-12-113, Public Hearing and Final Reading AN ORDINANCE AMENDING THE OPERATING BUDGET FOR THE CITY OF ATLANTIC BEACH, FLORIDA FOR FISCAL YEAR BEGINNING OCTOBER 1, 2011 AND ENDING SEPTEMBER 30, 2012. Mayor Borno read Ordinance No. 20 -12 -113 by title. Motion: Approve Ordinance No. 20 -12 -113. Moved by Woods, Seconded by Mark Mayor Borno opened the Public Hearing. Mayor Borno explained the adjustments to the budget were due to receiving a Justice Assistance Grant and capital expenses outlay for the Police Department for surveillance equipment. No one from the audience spoke so he closed the Public Hearing. Commissioner Daugherty asked if there is anything else we could spend this money on other than surveillance equipment, such as the evidence room. Chief Classey stated, no, the terms of that grant require what it is used for. Commissioner Daugherty asked if they have looked at any short-term solutions for the evidence room. Chief Classey stated they are looking at that now. Votes: Aye: 5 — Borno, Beckenbach, Daugherty, Mark, Woods Nay: 0 MOTION CARRIED 8. Miscellaneous Business A. Memorandum of Agreement Between City of Atlantic Beach and North Florida Utility Coordination Group (NFUCG) to Assess Groundwater Sustainability in Northeast Florida. Public Utility Director Donna Kaluzniak explained the agreement stating it was started in 2009 with nine of the utilities in Northeast Florida when the water supply planning process began with the Water Management District. Motion: Approve the Memorandum of Agreement between the City of Atlantic Beach, Clay County Utility Authority, City of Gainesville, City of Green Cove Springs, City of Jacksonville Beach, JEA, City of Neptune Beach, Town of Orange Park and St. Johns County to Assess Groundwater Resource Sustainability in Northeast Florida and authorize the City Manager to sign the Agreement. Moved by Woods, Seconded by Daugherty Ms. Kaluzniak answered several questions from the Commission, giving an overview of what has been done since 2009 and stated she could begin to give regular interim reports if they would like. Votes: Aye: 5 — Borno, Beckenbach, Daugherty, Mark, Woods Nay: 0 MOTION CARRIED January 23, 2012 REGULAR COMMISSION MEETING Page 4 B. Sewer Rehabilitation for FY12. Ms. Kaluzniak stated this is a continuation of our sewer program that was recommended by the sewer master plan in 2006. She stated she is asking again to piggyback on JEA's contract with Insituform for sewer lining and Concrete Conservation, Inc. for manhole rehabilitation and to use our own utility contractor for any point repairs that they find and also to put a little aside for contingency. She showed a slide of the sanitary sewer rehabilitation — Status FY 2011, pointing out where they will be working and explaining the color coding on the map and what needs to be done in each area, explaining the pink areas are the areas they know they still need to line. Motion: Authorize Insituform Technologies, Inc. to install cured -in -place pipe (CIPP) for the FY12 Sewer Rehabilitation Project in the amount of $206,703 using specifications and pricing in JEA Contract No. 116616. Authorize Concrete Conservation, Inc. to provide manhole rehabilitation for the project in the amount of $19,968 using specifications and pricing in JEA Contract No. 113044. Authorize Gruhn May, Inc. to install manholes in place of terminal cleanouts and tees in the amount of $43,243 using the pricing in Bid No. 1011 -02. Authorize a contingency of $30,085 to be used for any of the three contracts as needed. Authorize the City Manager to sign the contracts with Insituform Technologies, Inc. and Concrete Conservation, Inc. Moved by Daugherty, Seconded by Mark Commissioner Beckenbach asked what the timetable is for everything to be completed. Ms. Kaluzniak stated it will depend on funding but believes in 5 -7 years they will finish the pink areas. Commissioner Mark asked if the pink areas were based on age or condition. Ms. Kaluzniak stated they are the oldest part but the worst was the core city which has already been done. Mayor Borno asked if most of the blue areas were already PVC. Ms. Kaluzniak stated they were. Votes: Aye: 5 — Borno, Beckenbach, Daugherty, Mark, Woods Nay: 0 MOTION CARRIED C. Clarifier Repairs at Wastewater Treatment Plant #1. Ms. Kaluzniak explained clarifiers stating they are like large settling tanks, showing slides of the needed clarifier repairs that were found. She explained they requested quotes from both WPC who is doing the project and their annual contractor. She stated staff is asking for approval to blast and coat those areas needing repairs stating the cost is $29,428, as a change order to the project using the contingency funds. She further explained other areas that may need repairs in the future, but stated they would come back to the Commission for approval if those are found to be necessary. Motion: Authorize WPC Industrial Contractors, LLC to complete the clarifier repairs in the amount of $29,428, as Change Order No. 5, and authorize City Manager to sign the Change Order. Moved by Woods, Seconded by Daugherty Votes: Aye: 5 — Borno, Beckenbach, Daugherty, Mark, Woods Nay: 0 MOTION CARRIED January 23, 2012 REGULAR COMMISSION MEETING Page 5 9. City Manager A. City Manager's Report. City Manager Jim Hanson reported on the 5 Annual Breast Cancer Marathon which will be held February 12 and will start 30 minutes earlier because of the tides. Discussion ensued regarding traffic control. He further reported on a claim against the City related to a person stepping into an uncovered water valve. He stated the incident occurred on October 7, 2011 and the City was notified several days later. He stated staff found two valve covers missing and immediately replaced them. He stated we do have insurance for this type incident and they have turned it over to the insurance carrier. Mr. Hanson stated Ms. Kaluzniak has prepared an extensive report on water loss, as requested by the Commission, and also an update report on meeting our TMDL guidelines. Ms. Kaluzniak gave a slide presentation on the types of water loss, explaining the difference between real, unavoidable and apparent water loss. She also explained the proactive measures they are taking to reduce water loss. She explained her recommended actions for the water loss program, including continuing with current FY program of meter testing /repair /replacement, leak detection, etc. She further explained another idea for reducing apparent water loss would be to upgrade the touch -read metering system to advanced metering infrastructure whereby all meters report to a fixed location through radio transmission, but stated it is very expensive to implement at around $850,000. Ms. Kaluzniak and Mr. Hanson answered several questions from the Commission. Ms. Kaluzniak also gave an update report, with a slide presentation, on the TMDL construction status for WWTP #1 improvements. She pointed out that the force main was completed in May 2011, ahead of schedule, with a negative change order of $9,000. She further explained some of the challenges they have had with equipment delivery, as well as operational and logistical challenges. She stated they have had great teamwork among the city staff, engineers and contractors. She stated the deadline for TMDL compliance is 10/1/13 and the current construction completion is scheduled for Fall 2012 and then they begin their start-up and training activities as part of the engineering contract. She further discussed DEP's numeric nutrient criteria and recommended the Commission support that rule. Ms. Kaluzniak answered questions from the Commission. 10. Reports and /or requests from City Commissioners and City Attorney A. History of creation and appointment of committees. Mayor Borno asked if anyone had questions for the City Clerk regarding her report. Commissioner Daugherty stated he was very impressed with the thoroughness of the report and it gives the history of the way they have done things. He stated he knows there are a couple of people here who do not agree with the way we have always done things and believe we should do things differently. He stated there is a precedent and it is very clear. He discussed neutral orientation, whereby a committee member should not have a strong opinion either way on an issue, stating he believes anyone on any committee should begin their service with a neutral orientation. He stated he hopes when they do select the committee they find people who have a neutral orientation and can look at this objectively. Commissioner Beckenbach stated he noticed that as well, but also noticed there were a number of times in which the City actually had votes for the different committees as well. He stated he believes if there are January 23, 2012 REGULAR COMMISSION MEETING Page 6 appointments they should be okayed by the Commission. He stated he is not disagreeing that the Mayor does have the opportunity to appoint certain committees but he also believes the Commission has that same opportunity. He further stated if there is an appointment the Commission has that opportunity to vote. Commissioner Woods brought up Roberts Rules stating when it says appointed by, it actually clarifies it by stating the appointment is made but then the vote has to be taken. Mayor Borno thanked the City Clerk for her report, stating it shows there were votes and there were non - votes and the way he reads it is that it depends on each situation. B. Continue discussion regarding City Attorney's opinion on Committees. Commissioner Woods stated this issue they have been talking about and the long discussions they have been having about the City Attorney's opinion on committees has shed light on the need to have a City Attorney whose advice all members of the Commission are comfortable with. She stated this issue has made it clear that it is time for the City to part ways with Alan Jensen. She stated there are three ways the Commission can do this: (1) Mr. Jensen could have resigned, but at this point, it would look a little bit like coercion, so she is not sure that is still an option; (2) the Commission can simply vote to terminate his contract; or (3) the Commission can vote to terminate his contract with cause. She stated she has prepared a motion she believes is fair and passed it out to the Commission while reading it to them. She stated she would appreciate a second so they can discuss it. Commissioner Mark seconded, then stated I guess you have to read the motion. Commissioner Woods stated yes, she will read it. Motion: As the Commission recognizes Alan Jensen's long service to the City and as the Commission has the responsibility to protect the City's interest and provide for its legal integrity it is the Commission's duty to hold the City Attorney accountable for their professional actions as regards the City. It is regretful that the Commission does hereby find cause for termination of Alan Jansen. Such termination shall be effective immediately. Mr. Jensen shall immediately surrender all City records and related materials as required by law. The City Clerk and only the City Clerk shall in the morning take and maintain possession and responsibility of all of these public records. The City Manager is authorized to prepare and the Mayor to sign a letter of termination outlining these stipulations. Moved by Woods, Seconded by Beckenbach Mayor Borno stated there was a lot of documentation here and he did not believe it is fair to take action on this immediately, based on this, without the opportunity to digest the information Commissioner Woods passed out. He stated he believes that is a sheer courtesy you would owe to anybody. Commissioner Daugherty was in agreement with Mayor Borno, stating he has had different heartburns thinking about Alan Jensen over the last two years. He stated he has looked closely at his contract, he has talked to him about different issues, etc. and as far as the rate we are getting, it is a phenomenal rate with him and will pay more for anybody else. He stated with that being said, and literally with a quarter to half inch of paper, this could have been given to the City Manager a week ago and included in the agenda packet and the Commission would have had time to review it before making a decision. He stated he pretty much knows Commissioner Woods' disagreements with Mr. Jensen, especially the arguments they have had. He stated he did not like the mariner in which he addressed Commissioner Woods, specifically, in some of the heated debates but they had talks about that privately and things were resolved and better communication methods were devised from that. He stated he is in total disagreement with this last issue with Commissioners Woods and Beckenbach. He stated he believes Mr. Jensen was right on the mark with it, so he is in total disagreement as far as that is concerned. He stated his disagreements with Alan Jensen in the past have been more along the lines of methods of candor while addressing members of the Commission. He stated he would like to make a motion January 23, 2012 REGULAR COMMISSION MEETING Page 7 to defer until the next meeting to give them time to consider this. Commissioner Woods stated she believes they already have a motion on the floor. Mayor Borno stated a motion to defer takes precedence and it needs to be voted on. Commissioner Daugherty stated again he makes a motion to defer to give them time to digest this; this is a guy's livelihood they are talking about. He stated he does not believe this is something to make a decision on immediately. Commissioner Woods asked before he makes his motion can she address his concerns. Mayor Borno stated no, they have a motion to defer and they have to address that. He stated he will second the motion to defer. Motion: Defer to next meeting. Moved by Daugherty, Seconded by Borno He stated they need to vote for the motion to defer first before they get into anything else. He asked if there was any discussion on the motion to defer. Commissioner Woods stated she did not think it is needed. Mayor Borno asked that they not get into arguments back and forth. He stated the exchange must be one at a time, get recognized and let's have our say. Commissioner Woods stated she does not think a deferment is required. She stated the motion does not depend on the material she gave them necessarily. She stated what she had said to start with was that all of the Commissioners should feel comfortable with Alan for him to be our attorney. She stated you need to have faith and trust in that person and there seems to be, on the Commission, a lack of that. She further stated Commissioner Daugherty, himself, has had issues with him, so she just simply does not see the need to defer it. She stated it just drags out an unpleasant situation for everyone. Commissioner Daugherty asked Commissioner Woods why she did not give this to the City Manager to have it included in the agenda packet; why did she bring this up as a surprise. Commissioner Woods stated when she put in this agenda item, this was not her intent, but as she reviewed more and more, it just became more and more apparent that this is what needs to happen and she believes it is just cleaner and kinder to just do it, get it done and let everybody move on. She stated that is her personal opinion. Commissioner Daugherty asked Mr. Jensen how long has he been serving with the City. Mr. Jensen stated he was City Attorney from 1983 — 1984 and then again from 1989 — today. He stated 22 -23 years as City Attorney. Commissioner Daugherty stated he has had employees before that he has had heartburn with and they have had problems and have tried to work through it. He stated Commissioner Woods says it is kinder this way. He stated Alan is actually showing extreme reserve, because he doesn't think this is kind at all. To bring this up without any notice is just like saying you might as well kill your puppy so it doesn't suffer. He stated to him it is the same thing and he believes for someone who has 20 years history with our City, to just bring this up and say let's terminate his contract, which is the best way to say let's fire him, he believes is not the right way to do this. He stated they should think about it, consider it and talk to Alan about it individually and make a decision on this at the next meeting. Mayor Borno asked if there were any other comments. He stated the motion to defer is for the next meeting and they are requested by Commissioner Daugherty to each take the time to discuss this. He requested the City Clerk call the vote for deferment. Roll Call Votes: Aye: 2 — Daugherty, Borno Nay: 3 - Mark, Woods, Beckenbach MOTION FAILED January 23, 2012 REGULAR COMMISSION MEETING Page 8 City Attorney Jensen asked to respond to the motion to terminate him with cause and he believes his contract sets forth what determines cause. He stated he does not have that in front of him; he wasn't prepared for this tonight. He stated with just a quick glance at Commissioner Woods' reasons she has attached in the first two pages after her written motion, conduct that accuses him of being disloyal to the City is based on first that he inappropriately approved payment of $140,000 before obtaining insurance as required by the City Commission. He stated he didn't approve payment of anything; the City Commission approved payment. That getting the insurance on behalf of the City was something that he went out and did himself without any direction from the City Commission as a back -up. He stated l a is inaccurate. Commissioner Woods stated, I'm sorry, a point of order, this is not a trial. Mr. Jensen stated he was replying to her allegations. Commissioner Woods stated in Section 6 of his contract it says the performances are to be judged by the City Commission, so only the City Commission's judgment matters on these issues. Mr. Jensen stated so she wants the City Commission to make a determination based on allegations that she has made here without any response from him, asking her, is that her point. Commissioner Woods stated her point is we could sit here and go back and forth and back and forth and if he would like in due process to contest this, then she believes that would be a more appropriate time. Mr. Jensen asked, to contest it? He stated she has a motion to terminate him for cause, with a second on the floor, tonight, asking when else does she want him to contest this. Mayor Borno stated he believes as a matter of record they can be looking at all of these things and if there are inaccuracies then that needs to be taken into affect. Commissioner Woods stated she disagrees with what Mr. Jensen said already because the Commission did request that Alan get insurance before the payment was made. She stated he is shaking his head no but it was very clearly requested of him that that happen. Mr. Jensen stated he believes she would have to check the records on that. Commissioner Woods stated, like she said, this cannot be resolved tonight and if Mr. Jensen would like to contest what they are doing here, there is a process for that, but she doesn't think this is the point. Mayor Borno asked what is the process for contesting. Commissioner Woods stated that is what the courts are for. Mr. Jensen stated he guessed that would be one way to do it. Mayor Borno stated the question was what is the recourse for this. Mr. Jensen stated he doesn't think we want to get into a court battle over this; it is like if the Commissioners can't agree on interpretation of the Charter are they going to sue each other in court. He stated that would make the City look foolish, in his opinion, and it is something he would try to avoid and something he has tried to avoid for 32 years as he sat up here in one capacity or the other. He stated going on to some of the other items on here, that he was disloyal to the City by failing to represent all Commissioners fully and equally by giving and defending a legal opinion concerning committee formation methodology. He stated he doesn't sit up here as City Attorney to tell you what you want to hear or what you expect me to say or necessarily to agree with you; he is here to give you his opinion based on his experience and his training and his education. He stated he does not expect everyone to agree with every one of his opinions. He stated his opinion on the appointment of committees remains the same; as a rhetorical question, when it says the Mayor may appoint committees, what does that empower him to do, just to say there is going to be a committee? He stated then the issue becomes who are the members. He stated the definition of a committee in Black's Law Dictionary is a group of people, so if the Mayor appoints a committee, he is appointing a group of people and that, to him, would seem to entail the committee members. He stated, going on, it says he negotiated, prepared, wrote and approved the easement agreement. He stated he did not approve the easement agreement; that was approved by the City Commission. He stated it says he negotiated, wrote and approved the contract, but the City Commission approved the contract. He stated it says he negotiated, wrote and approved the tree mitigation payment of $140,000, but, first of all, he didn't approve it, the City Commission did and the $140,000 was not for tree mitigation, it was for purchase of the easement. He stated then it goes into, he did all this stuff, which was unclear and ambiguous, to cause much cantankerous and acrimonious debate between the Commissioners and the community. He stated it says that he negotiated, wrote and approved the agreement; again, he didn't approve any agreements, he brought it to the Commission. He stated he would bring it to the Commission; it is up to the Commission to approve. He stated let's see what else it specifically says, with a quick look at it. He stated it says he made an abrupt, apparently politically motivated change of January 23, 2012 REGULAR COMMISSION MEETING Page 9 opinion concerning the Commission's responsibility to allow exceptions promised to particular annexed properties along Beach Avenue. He stated he doesn't know what that is, it says it resulted in an ongoing lawsuit. He stated it must be the Wolfson property, that is the only thing he can think of, which was a decision made by the Community Development Board and then it came to this Commission. He stated it says that he overstepped his authority to hire an attorney for the Commission and supported this inappropriate action with a flawed explanation. He stated he does not remember one time that he has ever hired an attorney for this Commission. He stated he never has done that. He stated so these are the bases that he understands and, with just a quick review of these, it is inaccurate, false and incorrect. Commissioner Beckenbach stated, of course, he read through this as well. He stated he would like to amend the motion, if that is acceptable, instead of having it, he doesn't believe it's with cause, he would say that it terminates the employment of the City Attorney, Mr. Alan Jensen, without cause, because some of the items he has no idea whether or not they are true or not. He stated in this particular case, his feeling is that for the betterment of the Commission that they would go ahead. He stated he appreciates that Mr. Jensen has been here for 30 years, but he is looking at bringing in new blood in order to go ahead and to change the dynamics of the Commission. Commissioner Woods stated she would approve that amendment, she would accept that amendment. Commissioner Daugherty stated they haven't seconded it. Mayor Borno stated the amendment is to go without cause and asked if there was a second. Motion: Amend motion to terminate without cause. Moved by Beckenbach, Seconded by Woods Mayor Borno stated it is now on the floor for discussion. He stated he does not have the City Attorney's contract in front of him but there is something nagging at him about what the ramifications of that are, which makes him even more uncomfortable with this being acted on tonight. He stated he does not believe it is fair to the Commission for making an educated decision because they are not getting a chance to review all the things that are necessary and, in fact, the implications need to be considered by the Commission because there is a financial impact related to this. Commissioner Beckenbach stated the City may terminate the employment of the City Attorney hereunder without cause provided that any termination or removal of the City Attorney shall be in accordance with the provision of the City Charter. In such an event, the City Attorney shall continue to be paid his retainer and average monthly billings using the six months prior to termination in determining said average, with the health insurance benefits as provided herein for at least 180 consecutive days from the effective date of any termination without cause. He stated so we do have. Mayor Borno stated he didn't realize that Commissioner Beckenbach had that handy. He stated we are in discussion on the amendment. Commissioner Beckenbach stated he has a motion as well, stating he didn't realize that Commissioner Woods was going to bring up a motion, but he has one as well. He stated but what if it's the motion we thought it was. Commissioner Daugherty stated it strikes him odd that two different Commissioners would have a very similar motion that supposedly didn't talk to each other before the Commission meeting. Commissioner Woods stated, ok, I have this on the agenda. Mayor Borno stated, wait a minute. Commissioner Daugherty stated you didn't have it on the agenda. Commissioner Woods stated, I had. Mayor Borno called her out of order, stating Commissioner Daugherty has the floor. Commissioner Woods stated she doesn't like the accusation he is about to give. Mayor Borno called her out of order. Commissioner Woods stated, that is out of order. Mayor Borno stated, no it is not out of order. Commissioner Woods stated yes it is out of order. Mayor Borno stated he is running this, you are out of order, please cease and desist until Commissioner Daugherty has finished what he is going to say. Commissioner Woods stated, no. Mayor Borno stated, what January 23, 2012 REGULAR COMMISSION MEETING Page 10 do you mean, no? Commissioner Woods asked why she should sit here and let Commissioner Daugherty make a public accusation like that. Mayor Borno stated he didn't make a public accusation, let him finish what he has to say. Commissioner Woods stated, ok, let's see what he is going to say. Commissioner Daugherty stated since Commissioner Beckenbach actually brought it up, he guessed he saw him looking at it, he has a piece of paper here that says, I so move that the City Commission terminate the employment of City Attorney, Mr. Alan Jensen, without cause, Mark Beckenbach, City Commissioner. He stated as he said, he finds it very highly suspect that two different Commissioners would have the same motion on the same night, sitting in front of them. He stated he knows, himself, he has had citizens contact him and ask him if he would support the termination of Alan and he has pretty much told them he doesn't let citizens poll him for what he is going to decide. Mayor Borno stated that is illegal anyway. Commissioner Daugherty agreed it's illegal and he is very highly suspicious that Sunshine Law has been violated here. He stated you call a duck a duck. He stated two different Commissioners have the same exact. Commissioner Beckenbach stated it is not even close. Mayor Borno stated let him finish. Commissioner Daugherty stated he would like for his letter there to be entered into the record. Commissioner Beckenbach explained he sat down this afternoon and actually wrote this up. He stated he was asked by Mr. Ben DeLuna, a citizen of Atlantic Beach, who is a retired federal attorney, to make a correction to the record. He stated at the last Commission meeting Mr. Jensen stated that Mr. Ben DeLuna was contacted, along with three other lawyers who assisted him in interpreting Section 8 on Wednesday, December 21 Mr. DeLuna wanted the record to show that neither Mr. Jensen nor anyone from his office tried to contact him at the contact number that was supplied by Mr. Jensen. He stated this afternoon as he was writing this request for correction, he realized that Mr. Jensen and he do not and will not ever agree on the interpretation of the partial sentence pertaining to the appointment of committees and the actual powers of the Commission. He stated, realizing that he was elected to represent the interest of the citizens of Atlantic Beach and also realizing that the City Attorney is a staff position serving at the pleasure of the City Commission, as a newly elected Commissioner of Seat 3, he asks the Commission to consider terminating employment of Mr. Alan Jensen without cause. He stated he does not know where exactly Commissioner Daugherty thinks he spoke to Commissioner Woods. Commissioner Daugherty stated he doesn't know who he speaks to. Mayor Borno stated we are not going to get into an argument. Commissioner Beckenbach stated that is offensive, he has not spoken to Commissioner Woods. He stated, has he spoken to other people, to other lawyers, yes, he has. He stated he has spoken to Mr. DeLuna, he has spoken to Lyman Fletcher. He stated he has talked to both of those individuals before he wrote anything up, there is no doubt about that. He stated he did not go ahead and solicit Commissioner Woods, you have got to be kidding. He stated you don't think that I knew what Carolyn Woods was going to vote, are you kidding me. He stated Carolyn Woods, he knows, from the beginning of two years ago, what her interest was, so for him to go ahead and call her up and say are you going to vote this way would be ridiculous, so this is really insulting. He stated, now, because he disagrees with Alan, because he noted how Mr. Jensen has approached Carolyn, yes, I do have a problem with it and that is one of the reasons that I personally ended up going ahead and running for office and I said that. He stated, in fact, if anybody was out here, he spoke specifically about what the reasons were that he was running. He stated there wasn't a question in anybody's mind about why he was running and so, therefore, your insinuation that he ended up going ahead and making a phone call to her is really terrible. Commissioner Daugherty stated he never said that he made a phone call. Commissioner Beckenbach stated or even go ahead and colluded in order to go ahead and write this up. He stated the other thing is that what did he end up, Donna, the other day I ended up calling you up and I said he had this to go over, right, and she told him he was going to have to go and piggyback with Carolyn at that moment in time. He asked her, did she not tell him that that was the case, and Jim did as well. He stated therefore he was piggybacking on. City Clerk Bartle stated he was talking about just how he was wanting to propose an ordinance. Commissioner Beckenbach stated, exactly, and he was going to go ahead and propose the ordinance at this moment in time. January 23, 2012 REGULAR COMMISSION MEETING Page 11 He stated he ended up sitting there and doing this afterward. He stated he just said you know this is ridiculous, I'm going to go ahead and move this at this moment in time; why, because at this point Mr. Ben DeLuna ended up saying, hey listen this guy didn't contact me, he didn't contact me at all. He asked is this right or wrong. Mr. Jensen asked Commissioner Beckenbach, you got my email to you about that, correct. Commissioner Beckenbach stated to Mr. Jensen, and you said you didn't do it, correct. Mayor Borno cautioned we are not in an argument. Mr. Jensen stated he said that in contacting everyone that his office tried to contact everyone. He stated he had thought someone in his office had tried to contact him. He stated he spoke with Mr. DeLuna at length and he wanted to make the clarification that you brought up and I emailed you that clarification to set the record straight. He stated Mr. DeLuna said the only thing is that possibly if someone called and only let it ring one time and then hung up, and he doesn't know if that happened, it's a possibility because sometimes his office gets busy and someone may call and another line rings and they answer. He stated he doesn't know, but he ended up talking with Mr. DeLuna and talked at length with Brooks Rathet, another attorney Commissioner Beckenbach talked to; he talked to John November; Lyman Fletcher and he traded phone calls and they still haven't talked about it. He stated Commissioner Beckenbach said the City Attorney is a staff position; it is a charter officer, it is not a staff position. He stated in the motion they have to be effective immediately, that is your prerogative, or that was in Commissioner Woods' motion, that's your prerogative, which he assumes if it's approved will be tonight. He stated they have a mediation coming up on February 1 in a major case for the City that he will be there representing the City and they have several other law cases that are ongoing, so they are going to need to get someone onboard within the next seven or eight days and get them up to speed to be able to prepare and handle these lawsuits. He stated if that is their choice, that's fine; he will cooperate with whatever they do. He stated he knows he serves at the pleasure of the City Commission and is not going to be up here begging for a job and especially, it appears mainly because you don't like the opinion he gave on the appointment of committees. He stated he believes they have more important things to determine than how committees are appointed and when it says the Mayor may appoint committees, what's a committee, it's a group of people, so that's the members. He stated he has had opinions up here in the past where members of the Commission didn't agree with me, but I give an opinion that I think is the best opinion based on my experience. Mayor Borno stated they are still in discussion and asked if anyone else had anything to say before he says anything. Commissioner Daugherty stated they haven't voted yet on the amendment. Mayor Borno stated they are talking a discussion on the amendment right now, a determination for no cause. He stated they really, really need to consider the impact, the implications of doing it tonight, first of all. He stated it was explained we have a lot of issues and are we going to satisfy and hire somebody if this comes about within seven days to take care of litigation that has been ongoing. He stated that, to him is extremely important to this whole City, not to him personally, to the whole City, not just to the Commission. He stated he is not in agreement with the facts as they have been presented as supporting the motion tonight and he thinks if they review the records they will find that the explanation the City Attorney gave is a fact that he did not do these things. He stated it is a matter of record that it was City Commission actions. He stated using that as evidence to terminate. He stated, the third thing, this is based on the fact that you cannot agree with his interpretation of appointments of committees. He stated one thing they need to take into effect is that Article 8 and you have worked very diligently trying to support whatever intent was of the Commission in the past on how that verbiage came about and became part of Section 8. He stated they have worked very diligently to try and support their opinion of all the other pieces of the Charter that you bring forth which do not support and has been explained twice, that does not support your total contention. It is taking pieces of information trying to support a position. He stated taking all of that into effect, Section 8 is an administrative duties as broken out from Section 9. He stated discussion on how we were going to do that has been given to us in history where certain mayors have appointed committees and asked for no vote. He stated no vote was asked for, it was passed and it was done, right on the spot. He stated others have turned around and asked for a vote. He stated that is why it pulls back to his comment earlier that there are specific needs that generate January 23, 2012 REGULAR COMMISSION MEETING Page 12 situations and how you deal with those situations. He stated he was upfront at the last meeting and said he would put together something and we would have it here and he was ready to turn around and present that this evening. He stated he is still thinking about that. He stated with all that being said, as a matter of record, he is not in agreement with this and think it needs to be clarified and justified to be factual and not just put out as being fact outright. Commissioner Woods stated the motion has been amended. Mayor Borno stated it has been amended for without cause. Commissioner Daugherty stated actually they didn't vote on that. Commissioner Woods stated we haven't voted on that. Mayor Borno stated, I know. Mayor Borno stated, with that being said, is there anymore discussion on amend to terminate without cause. Commissioner Mark stated she believes, given the upcoming obligations that we definitely need some type of representation. He stated, according to Attorney Jensen, it is as soon as February 1. She stated she believes they should consider giving some type of requirement as to either until a suitable replacement has been found or a certain time, 30 days, 60 days, whatever the Commission agrees on, but she believes to have his termination effective tonight would be foolish. She stated they are not prepared, at least she is not prepared to offer a replacement since they just now discussed this, so unless there is a replacement already being talked about, she doesn't know. She stated she believes they need to be careful that they don't move themselves in some type of dire straits when it comes to the upcoming legal obligations we are facing. Mayor Borno asked if there was any other discussion. Commissioner Beckenbach stated he would make an amendment. Mayor Borno stated they have an amendment right now for without cause and a second. He asked if there was any more discussion related to that. Commissioner Woods stated, before they leave the point that Maria just made and Alan talked about something happening on February 1, she believes there are a lot of lawyers involved in that and we have legal representation other than Alan through our. Mr. Jensen stated, no we don't. Commissioner Woods stated I see, sorry, I thought I saw their names for Roper out of Orlando. Mr. Jensen explained the insurance company stopped paying them and they are no longer involved. Commissioner Woods asked, the insurance company stopped paying them. Mr. Jensen stated, right. Commissioner Woods asked which insurance company is that. Mr. Jensen stated the City's insurance company that was paying Bell & Roper. Commissioner Woods asked how can the insurance company decide to stop paying. Mr. Jensen stated because we were able to get the injunction part of the lawsuit withdrawn, so there is no longer coverage as the insurance company defines it for this litigation. Commissioner Woods stated it was her understanding also in that lawsuit that we have co- counsel with Jacksonville and the Estates of Atlantic Beach so we would not, in reality, be unrepresented. Commissioner Daugherty asked is that a lawsuit you are involved with. Mr. Jensen stated there is a hearing this Wednesday, there is mediation the following Wednesday that has been scheduled with all the attorneys involved for the various representatives. He stated if he is not at that mediation or someone else on behalf of the City of Atlantic Beach, we will not be represented. Commissioner Daugherty stated he had a quick question for Commissioner Woods. He asked if that is a lawsuit she is involved with. Commissioner Woods stated she did not know what he means. Commissioner Daugherty stated on February 1 He stated she mentioned the Estates of Atlantic Beach. Commissioner Woods stated she assumed that was what it was. Commissioner Daugherty stated he saw some things in the past where she has been depositioned for some lawsuits, he really didn't pay too much attention to it, but is that. Mayor Borno stated that is not pertinent right now. Commissioner Daugherty stated, ok, he was just curious. Mayor Borno asked if there was any more discussion. He stated they have a motion and an amendment to terminate tonight without cause. He asked the City Clerk to please call the roll. Commissioner Daugherty clarified this is just for the amendment. Mayor Borno stated yes. Commissioner Beckenbach stated just to amend it. Mayor Borno stated aye is to terminate, nay is to not terminate. Commissioner Daugherty stated, actually. Mayor Borno stated to approve the amendment. Commissioner Beckenbach restated just to approve the amendment. Mayor Borno stated yes, asking has he got that correct. Commissioner Mark stated just to approve the amendment that it is without cause. Mayor Borno stated aye is January 23, 2012 REGULAR COMMISSION MEETING Page 13 to approve it without cause, nay is to do away with it, asking if everybody understands where they are at. He asked the City Clerk to call the roll. As the roll call vote was being taken Commissioner Woods voted aye, then had a question and the Mayor stated if you vote aye you are approving the amendment to terminate. Commissioner Woods stated without cause. Commissioner Mark stated without cause. Mayor Borno stated without cause. Commissioner Woods stated when Commissioner Beckenbach made the amendment she told him she would accept that. Commissioner Daugherty stated yes, she seconded it. Mayor Borno stated and he said it was seconded, we are voting on that, to whether it is amended. Commissioner Woods stated right, so I agree to that amendment is what I am agreeing to. Commissioner Mark stated right. City Clerk Bartle stated we aren't voting on the motion, we are voting on amending the motion. Commissioner Woods stated the amendment, right, and I agree to amend the motion. Mayor Borno stated I agree, we have a motion and a second, so a vote for aye supports the amendment to terminate without cause, nay is to not agree with the amendment. He asked, so again does everybody understand that. City Clerk Bartle stated so far, Mayor, I have Commissioner Mark and Commissioner Woods as yes or aye and asked if she can go on. Mayor Borno stated yes, please. Roll Call Votes: Aye: 4 — Mark, Woods, Beckenbach, Daugherty Nay: 1 - Borno MOTION CARRIED Mayor Borno stated the amendment passes. Commissioner Woods stated so now the motion on the floor is to terminate without cause and it sounded like Commissioner Mark wanted to amend it. Commissioner Mark stated yes. Mr. Jensen asked who is running the meeting. Mayor Borno stated that is what he would like to figure out too, who is running the meeting. He stated if you are all done running the meeting, would you have the courtesy to let me finish up. Commissioner Woods stated you go right ahead. Mayor Borno stated thank you very much. Mayor Borno gave Commissioner Mark the floor. Commissioner Mark stated thank you. She stated she guessed she would amend the amendment to change the language of Mayor Borno stated amend the original motion. Commissioner Mark stated yes, to remove the terms, such termination shall be effective immediately, to, and this can be for discussion, until such other suitable replacement has been found or if they want to give it a certain timeframe of 30 or 60 days. She stated it is basically to remove the words, such termination shall be effective immediately. Mayor Borno clarified, remove the words, effective immediately and asked if she wanted to make a time span or do you want until an appropriate replacement is found and hired by the City Commission. Commissioner Woods stated how about with a certain. Mayor Borno stated we need to do it one way or the other. Commissioner Mark stated she would say within a certain time frame. Mayor Borno stated give me a timeframe. Commissioner Mark stated 30 days. Mayor Borno stated he thinks that is an awful short time. Mr. Hanson stated as a practical matter, if you are trying to get people to submit applications and he doesn't know what process they will want to use to replace the City Attorney, but to try to get people to submit applications and for the Commission then to gather them and go through some kind of a process and making a decision, 30 days is a mighty short turnaround on that. Commissioner Woods stated Neptune Beach just did it in about a week. Mayor Borno stated Neptune Beach is history, we are dealing with ours. He asked if Commissioner Mark wanted to keep it at 30 days, do you want to go 60, what is your pleasure, you have the floor right now. Commissioner Mark stated she would defer to a suggestion by either the City Manager or whoever has had experience with hiring. She stated it has been a while so we don't really know, but 45 days, 60 days. Mayor Borno stated he believes a reasonable time, in his own personal opinion, is 60 days and that's even squeezing it but it is up to her, she has the floor, what is your motion. Commissioner Mark stated they could say 60 days, she stated she will put in 60 days and if there is any other discussion then we can. Commissioner Beckenbach stated he would January 23, 2012 REGULAR COMMISSION MEETING Page 14 second it. Mayor Borno stated amend to 60 days for a replacement. He stated there is a second by Commissioner Beckenbach and asked if there is any discussion related to that amendment. City Attorney Jensen stated the 60 days would be the effective date of the termination and asked if that was right. Commissioner Woods stated or within, if we have made arrangements before then, or no. Sixty days, ok. Mayor Borno stated it needs to be one way or the other, so in the 60 days our objective is to have another City Attorney here, it's a 60 day period. He stated so the 60 days would be, I think that is the answer. Mr. Jensen stated the effective date of the termination. Mayor Borno reiterated the effective date of the termination. Mayor Borno stated we have an amendment and a second on the floor and asked if the City Clerk understands the amendment. He asked if there was any discussion. City Clerk Bartle stated they don't want to add the words in, for a replacement, or anything, right; it doesn't matter whether it is replacement or not. Mayor Borno stated, no, it is 60 days. He stated, amended to terminate 60 days from tonight and asked the City Clerk to call the vote, please, stating aye is to approve the amendment, nay is to not agree with the amendment. Motion: Amend from termination effective immediately to termination in 60 days. Moved by Mark, Seconded by Beckenbach Roll Call Votes: Aye: 4 — Woods, Beckenbach, Daugherty, Mark Nay: 1 - Borno MOTION CARRIED Mayor Borno stated they are now to an amended motion to terminate the City Attorney without cause, effective 60 days from tonight and asked if there was any discussion. There being none, he asked the City Clerk to call the roll, please. Roll Call Votes: Aye: 3 — Beckenbach, Mark, Woods Nay: 2 - Daugherty, Borno MOTION CARRIED Mayor Borno stated to Mr. Jensen, he was very sorry. Mr. Jensen stated he serves at the pleasure of the Commission. Mayor Borno stated he understands that. C. Committee on Police Building needs. Mayor Borno passed out information on Ad Hoc Committees. He further distributed a proposed committee outline which he read in full. Motion: Approve outline proposal for committee to consider police building needs as read, including adding "and other staff members" after "Other PD staff ", under staff liaison (which is attached and made part of this Official Record as Attachment A). Moved by Borno, Seconded by Daugherty Commissioner Woods stated an issue came up at the workshop and town hall meetings regarding how technology can reduce our size requirements. Mayor Borno stated that is incorporated. Commissioner Woods stated another issue relates to should the City expand in size and whether this building would become January 23, 2012 REGULAR COMMISSION MEETING Page 15 immediately outdated and too small and should it be in a location where it could expand if needed. He stated he believes he addressed that also. Mr. Hanson stated question 5 relates to that. Mayor Borno stated they should be prepared to bring their nominees back to the next meeting and a final vote will be taken at that time to establish the committee and a start date. He stated if there is anyone who would like to volunteer they should contact the City Clerk. Commissioner Beckenbach asked about the facilitator. Mayor Borno stated they will be from the outside and they are working on getting that person identified so they will be ready to go with the committee. Mr. Hanson stated the facilitator will be someone who has training and experience in doing facilitation of various group projects. He stated there are a number of people who do this and they will try to find someone local which will cut down on travel costs. Lyman Fletcher stated UNF is a source for a facilitator. Mayor Borno stated he would like the City Manager to choose the facilitator since it is a funding issue. He stated he believes this is something staff should do. He asked if there was any objection to that. There was no objection from the Commission. City Clerk Bartle asked for clarification regarding whether they are requiring interested persons to fill out the application. Mayor Borno stated it can be an email stating they want to volunteer, submitting an application for boards, or a resume. He stated the objective is to ask for people to volunteer who are open- minded citizens to work on this committee so they have people to pick from. He stated he does not care how they do it. Commissioner Daugherty asked if their suggestions of two people will be voted on and approved by the Commission. Mayor Borno stated it will be. Votes: Aye: 5 — Borno, Beckenbach, Daugherty, Mark, Woods Nay: 0 - MOTION CARRIED Commissioner Daugherty • Requested a report on a temporary solution regarding the evidence room health situation, stating it is an immediate health hazard to our employee and he is very concerned about it. • Stated there are openings on the Pension Board and Cultural Arts and Recreation Committee and if anyone is interested, please contact the City Clerk. • Did some research on the Palms property on Mayport Road stating it is going into foreclosure under Chapter 11 bankruptcy and the owners are willing to discuss the City acquiring the property. He stated he has scheduled a meeting with the property owner and the City this week. He stated the City may be able to obtain the property at a very low cost and it could be an alternate site for the police station. • Discussed using CDBG money for expansion of Rose Park, showing slides of the park. He will put this on the next agenda. • Suggested using gas tax funds in next year's budget for sidewalks. • Expressed his deep regret to Alan Jensen for the method used in terminating him. He stated he is sorry and is really sad. Commissioner Mark • Stated she, Mayor Borno and Commissioner Woods will be going to Tallahassee tomorrow and Wednesday for Legislative Action Days. January 23, 2012 REGULAR COMMISSION MEETING Page 16 • Reported on Councilman Gulliford's town hall meeting regarding the ferry. Stated she was selected to be on a local task force for the ferry. • Reminded everyone that the last town hall meeting will be this Saturday in the Chamber from 10:00 — Noon. Commissioner Woods • Agrees it is regrettable that Mr. Jensen's termination was deemed to be appropriate by the Commission. She believes an equitable solution was achieved and is very glad to hear that Alan is willing to work with the City and the Commission to make this a positive transition. Mayor Borno • As Commissioner Mark stated he is attending FLC Legislative Action Days, stating they have two appointments to date and they will attend Rep. Adkins meeting on the ferry. He pointed out that they will all be taking separate cars so there is no Sunshine violation. • Stated he appreciates Alan's service; he has been honest and straightforward and he regrets it was done in the manner it was done stating the information that was provided was not a fair shake. Adjournment There being no further business to come before the Commission, the Mayor declared the meeting adjourned at 9:26 p.m. li tt ri ld 4 444.0 Mike Borno Mayor /Presiding Officer ATTEST: P6 /140/ 1/4( Donna L. Bartle, CMC City Clerk ATTACHMENT A Committee to Consider Police Building Needs January 23, 2012 Charge to the Committee: A consensus has been reached by the Atlantic Beach City Commission that the Atlantic Beach Police Department (ABPD) faces several challenges that need to be resolved relating to their current building. Among the critical issues are: • Operational inefficiencies relating to the present building • Impacts on the overall effectiveness of our police service • Safety concerns • Potential liabilities However, questions remain about the size and cost of the proposed new building. To aid the Commission in resolving those questions, a Police Building Ad Hoc Committee (Committee) is proposed. Its purpose is to become familiar with the building related problems, consider various alternatives to solve the problems, consider costs related to each alternate and make a recommendation, in the form of a final report, to the Mayor and Commissioners of the best way to solve the building related problems balancing both the cost to Atlantic Beach taxpayers as well as the need to have a top quality police department serving out citizens for many years to come. Membership: • Size —11 members • Appointments — Each City Commissioner, including the Mayor, shall appoint two members. The Mayor shall also appoint a third member to Chair the Committee. • Committee Members — It is important to have impartial, open- minded individuals who have the time and interest in attending several committee meetings, reviewing past work, learning about the needs of the ABPD, and making the best recommendation for the future of Atlantic Beach. The committee appointments should not be a proxy for opinions held by any commissioner, but instead should be open- minded citizens who have not yet formed an opinion as to possible solutions to the Police Department needs. All members must be Atlantic Beach residents. Committee Meetings: • Meetings of this Committee will be run by a facilitator to be provided by City who must be professionally trained and have experience in facilitating group meetings. This should not be a present or past City employee or elected official. • The Florida Sunshine Law is applicable to this Committee. Members cannot communicate with each other about the police building outside of the advertized committee meetings. • Staff Liaison: The staff liaison will be Chief Mike Classey. Other PD staff and other staff members may be brought in and participate as needed. • Meeting Attendance by Elected Officials. If any elected officials choose to attend Committee meetings, they should only be observers and not participate in any way. Timetable and Sunset Provision: • Meetings — There will be approximately 8 -9 weekly meetings of the Committee which are expected to last between one and two hours each. • Sunset Date — This Committee must make its final report and thereby conclude its final business and automatically dissolve nine (9) weeks after it's first meeting. • Report — The final report is expected to specifically answer the following questions: 1. What are the critical deficiencies and problems related to the present Police Building? 2. What facilities are used by other similarly sized police departments in Florida? 3. Should the City of Atlantic Beach invest in either remodeling of the existing Police Building, expand the existing building, or build an entirely new building? 4. If new facilities are recommended, where is the best place to build them? 5. Should future expansion be considered in plans for new facilities? 6. If new facilities are to be added either through an expansion to the existing building or in a new building, how large should the new facilities be? 7. Identify and prioritize the key components proposed in either an expansion or new building, i.e.; dispatch center, records, specialized storage, jail cells, etc.