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Agenda Item 1A - Minutes 5-12-14IN ATTENDANCE: MINUTES *REGULAR CITY COMMISSION MEETING May 12,2014 CITY HALL, 800 SEMINOLE ROAD AGENDA ITEM# IA JUNE 9, 2014 Mayor Carolyn Woods Mayor Pro Tern Mark Beckenbach Commissioner Jonathan Daugherty Commissioner Jimmy Hill City Manager Nelson VanLiere City Attorney Richard Komando City Clerk Donna Bartle Recording Secretary Nancy E. Bailey ABSENT: Commissioner Maria Mark (excused) Call to Order/Pledge: Mayor Woods called the meeting to order at 6:30 p.m. Commissioner Beckenbach gave the Invocation, followed by the Pledge of Allegiance to the Flag. Mayor Woods announced that Commissioner Mark is out this evening due to a family emergency, which may also affect tomorrow night's HRO workshop. She asked for consensus to reschedule the HRO Meeting so Commissioner Mark can be here. It was a consensus of 4-0 to reschedule that meeting. Discussion ensued. 1. A. B. c. D. E. Approve the minutes of the Regular Commission Meeting of April14, 2014. Approve the minutes of the Commission HRO Workshop of March 12, 2014. Approve the minutes of the Community Meeting for the Multi-Use Path of March 19, 2014. Approve the minutes of the Special Called Meeting of March 24,2014. Approve the minutes of the Commission Workshop ofMarch 24,2014. Mayor Woods asked if there were any corrections to the above minutes. There were no corrections, so Mayor Woods stated the minutes will stand as submitted. 2. Courtesy of Floor to Visitors Mayor Woods opened the Courtesy of the Floor to Visitors. She welcomed the audience and explained the process for public comments. Chris Jorgensen, 92 W. 3rd, spoke in opposition to the HRO. Richard Reichler, 2025 Beach Ave., addressed Item 8B, speaking against the waiver request. He stated no waiver application has been submitted and no attempt to show that the request meets any of the legal requirements for approval of a waiver application. He stated the attachment included in the agenda is a variance application, not a waiver application~ He stated after submitting it they violated the law by building a 30ft. wide driveway anyway. He is requesting that the City deny the request or require that the owners correct the driveway violation and the following three additional violations of the land development code. The garage is built 5 ft. into the setback. A 6 ft. fence is erected in the front yard. The lot is in violation with ·50% maximum impervious requirement. He stated he is asking the Commission to require Mr. Carper or other authorized official to actually inspect the property for compliance with the law and require the owners to either change the materials used or otherwise reduce the amount of impervious surface on the property. He stated he is requesting the City deny this application and require that the owners correct their existing blatant violations of the Land Development Code. May 12,2014 REGULAR COMMISSION MEETING AGENDA ITEM# IA JUNE 9, 2014 Page2 E.K. Cottrell, 1656 Park Terrace E., President of Friends of Atlantic Beach Elementary (F ABE), requested the City, as part of the joint use agreement, assist with the reconditioning and resurfacing of the track over the summer. No one else from the audience spoke, so Mayor Woods closed the Courtesy of the Floor to Visitors. Item SD was taken out of sequence and acted on at this time. D. Approval of City Sanitation Contract Modification and Extension. Public Works Director Rick Carper distributed a flyer generated in response to Commissioner Hill's comments last meeting about the plastic dumpsters' potential flammability. He explained the details of the extension of the contract with Advanced Disposal. Motion: Do not renew the contract with ADS and send out an RFP for services as soon as possible. Moved by Daugherty Motion failed due to lack of second. Motion: Approve the contract modifications and extensions with Advanced Disposal Services and authorize the City Manager to sign the extension for the City. Moved by Beckenbach, Seconded by Hill Discussion ensued. Commissioner Hill asked if 7 years was their idea or our idea, versus 5 years. City Attorney Komando stated that was built into the original contract that was approved 7 years ago. Further discussion ensued. At the request of Commissioner Beckenbach, Mr. Carper explained the background of Redman Consulting Group, the consulting group that was used for this contract. Votes: Aye: 3 -Beckenbach, Hill, Woods Nay: 1 -Daugherty MOTION CARRIED A. Proclamation Declaring Saturday, May 17, 2014 as National Kids to Parks Day. Mayor Woods read the Proclamation declaring May 17, 2014 as National Kids to Parks Day. 3. Unfinished Business from Previous Meetings A. City Manager's Follow-up Report. City Manager Nelson Van Liere reported they will sign the contract with CRA for the police building. Stated Mr. Komando has been working on the Interlocal Service Boundary Agreement and it should be on the next agenda. Commissioner Becken bach asked that he explain further what is happening with the police station. Mr. Van Liere stated they had approved at the last meeting that, within a budget, they would negotiate a contract for them to evaluate the site so that consultant can get to work as soon as they sign that contract. Commissioner May 12,2014 REGULAR COMMISSION MEETING AGENDA ITEM# IA JUNE 9, 2014 Page3 Hill asked that the Commission get reports during the regularly scheduled meetings specifically on what progress is taking place. Chief Classey explained the only thing they are asking the consultant to do is evaluate the site. He stated they are not doing building plans. He stated this is a very short process; from the time signatme goes on contract, this is a 90-day process. He stated they were very specific and built in for two public meetings before the Commission. He stated the items in the RFP all specifically came from the Commission's direction and it was reviewed by the Commission before they were approved to send it out. He stated there will be a public meeting by this firm to the Commission with an opportunity for citizen input before they get knee deep into the study and will be able to hear directly from the Commission any more detail or to expand on any of the facts. He stated the scope of the work has been set, which includes two meetings, so if there were more that were desired that would be a renegotiation of the scope and an increase in the cost. He stated they will take the Commission's input and employ that into their study and then come back to the Commission with some different options about what they can do. Discussion ensued. Mr. Van Liere stated they are still working on refunding the utility revenue system debt and that will be coming back to them at a future meeting. He stated it should be about $1.2 million and about $130,000/year in debt service. He stated they have received many applications for the position of Public Works Director. He stated they are looking to fill the Assistant Public Works Director position, as well. Thanked Timmy Johnson and Yvonne Calverley and Public Works for their work on the Bowl Bash this past weekend. Stated all the Department Heads have been working hard to get their budgets into the computer so he can get to work in balancing and coming up with a proposal. He stated he will put the meetings on the next calendar. 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 Building Department Monthly Activity Report and Financial Report for March 2014. B. Approve the 90-Day Calendar (May-July) for the Mayor and Commission. C. Authorize the City Manager to sign the two-year audit agreement extension engagement letter for services with Purvis, Gray & Company. D. Extend the contract with R & D Landscape & Irrigation for one year at the rate of $55,620.00 for Streets and $63,489.00 for Parks for a total cost of$119,109.00. E. Authorize the Mayor to sign the Agreement for the Hazard Mitigation Grant for Donner Subdivision Sewer Upgrade. Mayor Woods read the Consent Agenda. She pulled Item B. May 12,2014 REGULAR COMMISSION MEETING Motion: Approve Consent Agenda Items A, C-E as read. Moved by Hill, Seconded by Beckenbach Votes: Aye: 4-Beckenbach, Daugherty, Hill, Woods Nay: 0 MOTION CARRIED AGENDA ITEM# lA JUNE 9, 2014 Page 4 Mr. VanLiere explained the calendar. Commissioner Beckenbach stated he will not be available from June 3-18, 2014. Commissioner Daugherty stated he is not available on Wednesdays. The Commission added a meeting on 6/26/14 to meet with the consultant for the police building and it will be videotaped. Commissioner Hill stated he is not comfortable with the workshop setting on the floor because it leaves the public out of it for half the Commission. He stated he doesn't like putting his back to the public when he is trying to interact with them. Motion: Approve Consent Agenda Item B as updated. Moved by Daugherty, Seconded by Beckenbach Votes: Aye: 4-Beckenbach, Daugherty, Hill, Woods Nay: 0 MOTION CARRIED 5. Committee Reports None. 6. Action on Resolutions A. RESOLUTION NO. 14-04 A RESOLUTION OF THE CITY OF ATLANTIC BEACH RENAMING DONNER PARK COMMUNITY CENTER IN ATLANTIC BEACH THE "GAIL BAKER COMMUNITY CENTER". Mayor Woods read Resolution No. 14-04 in its entirety. A slide of the new sign for the Community Center was shown on the projector. Motion: Approve Resolution No. 14-04 as read. Moved by Daughe1ty, Seconded by Beckenbach Mayor Woods invited everyone to join them at 4:00p.m. tomorrow for the ceremony at Donner Park. She stated they have also planted a citrus tree at the park in Gail Baker's honor. Votes: Aye: 4-Beckenbach, Daugherty, Hill, Woods Nay: 0 MOTION CARRIED 7. Action on Ordinances A. Ordinance No. 5-14-61, Introduction and First Reading May 12,2014 REGULAR COMMISSION MEETING AGENDA ITEM# IA JUNE 9, 2014 PageS AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, FLORIDA, AMENDING CHAPTER 2 OF THE CODE OF ORDINANCES, ADMINISTRATION, ARTICLE II, CITY COMMISSION, SEC. 2-16, TIME AND PLACE OF REGULAR MEETINGS, TO PROVIDE FOR TWO (2) REGULAR MEETINGS PER MONTH EXCEPT FOR DECEMBER, CHANGING THE TIME TO 6:00PM, AND PROVIDING AN EFFECTIVE DATE. Mayor Woods read Ordinance No. 5-14-61 by title. Motion: Approve Ordinance No. 5-14-61 as read. Moved by Hill, Seconded by Daugherty Commissioner Beckenbach referred to the May 29, 2012 agenda stating there have been a lot of items that were not normal items that would come before the Commission and now we are starting to settle down a lot more. He would like to give it another 6 months to determine whether there is a need for change. He stated he knows that staff has been pushed in the-past by the information that had to come through but right now he doesn't believe today's agenda is overwhelming for anyone, whether or not they have a workshop first. He stated at this time, there is no citizen who can say they didn't have the time to listen to what they had to say or to review something or to talk to them. He stated with a change to this it will occur. He stated he doesn't see a need to change from a workshop to a voting meeting. Mayor Woods stated she would like to have a full Commission for this decision and asked if they want to defer this to the next meeting. Commissioner Hill asked the City Attorney how his other clients meet who are similar size cities or is there a survey done on what other cities have done that is available. He stated he has a problem with the 6:00p.m. start time but doesn't mind trying the other part. He also stated staff hasn't asked them for a whole lot and he believes there has to be a driving force behind this. He stated he wants to explore this before he says no to it. City Attorney Komando explained he is not aware that a survey exists but from their other clients, some meet at 5:00, some at 5:30 and Orange Park meets at 7:00 with two Town Council meetings a month. He stated the County meets twice a month as well without the workshop setup, but they also meet at 5:30 and intentionally schedule their public hearings at 6:00 in case there is anything the public wants to participate in. He stated the Commission then handles Commission business beforehand. Mayor Woods stated she would like to do some kind of hybrid so the first part of the agenda gets taken care of on a regular basis but the action on resolutions, etc. still stays in the workshop and gets moved to the next agenda as the Commission feels comfortable with them. She stated that may help some of staff's problems with just the regular day-to-day things that move along a little bit faster than having the workshops for discussion on all these items. She stated she would still like to have Commissioner Mark in on this conversation and believes it is important enough for all of them to be here. She stated she would like them to start thinking about some kind of a hybrid so they can meet the citizens and staff's needs all together. Motion: Amend to change time back to 6:30 p.m. Moved by Daugherty Discussion ensued. Mayor Woods stated she would like to request that he withdraw his motion and they defer it to the next meeting. May 12,2014 REGULAR COMMISSION MEETING Commissioner Daugherty withdrew his motion. AGENDA ITEM# lA JUNE 9, 2014 Page 6 Commissioner Hill stated he will withdraw his original motion if it can be put back on for an original reading at a full quorum. Mayor Woods asked if they are going to ask staff to work out a hybrid for the next meeting. Commissioner Hill stated he would like to have staff review it and also get a brief report on a number of other cities that have a commute involved and are similarly sized with the same form of government. He stated there are two issues: travel time to get here and the number of times they meet and the number of times the public gets to view the information. City Clerk Donna Bartle stated she could help with research on what other cities do, if she understands what it is they want surveyed. She stated there was a recent survey where a citizen asked that the Commission get the agenda packet out sooner so this city clerk sent a question to all the other clerks to get their input and of the people who submitted the survey, six days was the most amount of time that they had their agendas out prior to their meetings. She stated she believes they were talking about regular action meetings and doesn't know if any of those also had workshops but their action agendas were out no more than 6 days, and in a lot of cases it was the Thursday or Friday before a Monday meeting. She stated we are already doing better than they are and with what the City Manager has proposed we will give an extra 5-7 days more than what we are doing currently. Mr. VanLiere asked what it is they want him to come back with. Mayor Woods stated she is thinking about a concept they had discussed before where they had a meeting and a workshop and at the meeting they took care of the consent agenda and things that just moved the City business along and then the workshop was for all the other things that needed discussion. Commissioner Hill stated the workshops seem to him to be less than productive, they talk about a lot of things but a lot of times they actually could take action on some things if they opened an actual voting meeting, they could actually expedite some things that need to move quicker and slow down some things that need to slow down. Mayor Woods stated any insight they could give staff between now and the next meeting would be greatly appreciated. Discussion ensued. Motion: Defer to June 9th meeting and give staff the opportunity to present some options. Moved by Daugherty, Seconded by Beckenbach City Clerk Bartle stated in order to put this on as first reading they would want it to be somewhat correct language or else they will have to take it to a first reading again. She asked if they are saying to just put the same thing on the agenda and then workshop it and then amend it before the regular first reading. Commissioner Beckenbach stated 6:30 would be the time to keep it and as far as other changes are concerned he would like to see what other options there might be. Mayor Woods asked the City Attorney to explain the process. Mr. Komando stated he would anticipate that at the workshop they should probably have drafted language a couple of different ways and, if they are just changing the time at that point, then the ordinance will be ready for first reading at the next regularly scheduled meeting. He stated if the concept is to do a hybrid, they can work on language to that effect and then they can also look to see what other cities are doing to see if there is some language they would want to include. Mayor Woods reiterated the motion and asked that they all talk to staff. Discussion ensued about the date to defer it to and it was determined it should be June 9. May 12,2014 REGULAR COMMISSION MEETING Votes: Aye: 4-Beckenbach, Daugherty, Hill, Woods Nay: 0 MOTION CARRIED 8. Miscellaneous Business AGENDA ITEM# lA JUNE 9, 2014 Page 7 A. Public Hearing UBEX-14-00100010 -Request from American Well and liTigation for use-by- exception as permitted by Section 24-111 (c) ( 6), to allow contractors, not requiring outside storage in the Commercial General (CG) Zoning District on property located a at 1651 Mayport Road. Jeremy Hubsch summarized the use-by-exception explaining the updated final recommended conditions as discussed at the workshop: 1. The applicants establish a continuous hedge line along the chain link fence that borders the property at Mayport, Ardella, and Jackson Roads. This hedge line shall be six feet tall and shall be maintained by a supplemental water system. City staff shall perform a yearly inspection to ensure the hedge is compliant. 2. A City standard concrete apron from the edge of pavement to right-of-way line on both Ardella and Jackson Roads at the ingress/egress points that are currently in place shall be constructed. Mayor Woods opened the Public Hearing. No one from the audience spoke so she closed the Public Hearing. Motion: Approve Use-By-Exception 14-00100010 with the above conditions as recommended by the Community Development Board. Moved by Daugherty, Seconded by Beckenbach Discussion ensued regarding the hedge and the chain link fence. Votes: Aye: 4-Beckenbach, Daugherty, Hill, Woods Nay: 0 MOTION CARRIED B. Request for a Waiver from City Code Section 19-7 Driveway Limitations to Allow a 30Ft. Driveway at 436 Beach Avenue. Jeremy Hubsch explained the difference between variances and waivers. Discussion ensued regarding the issues Mr. Reichler expressed during Courtesy of the Floor. Mr. Hubsch explained the background of these issues and how they were approved. Mayor Woods stated she would like to defer this issue so the City Attorney can look into this. Mr. Komando stated he would like more direction as to what concerns she wants him to look at. Mayor Woods stated she wants him to look at everything Mr. Reichler brought up and that Mr. Hubsch discussed, i.e. garage within the 20 ft. setback, how it relates now that they have the front and the back and did the City Building Official have the right to grant a 5 ft. variance. Mr. Komando stated his understanding wasn't that the setback issue was before the Commission but he is happy to look at those things. He stated that decision may be something that can't be undone at this point. He stated Mr. Hubsch's explanation of the use of a waiver for the driveway is entirely conect under our Code. He stated the driveway portion of our Code is under 19-7, not part of Chapter 24 with the Land Development Regulations and when Mr. Reichler was talking about the difference between a variance and a waiver, variances are used for zoning Issues. May 12,2014 REGULAR COMMISSION MEETING AGENDA ITEM# lA JUNE 9, 2014 PageS Mayor Woods further asked about the impervious issue on the site. Mr. Carper gave an explanation and showed a slide of the site. Motion: Defer until the June 9 meeting so the City Attorney can answer these questions. Moved by Daughe11y, Seconded by Hill Discussion ensued. Mr. Reichler answered questions from the Commission. Commissioner Daugherty stated he would like the City Manager to look at our staff process to see how something like this could have happened. He asked how can someone build something without permissiOn. Votes: Aye: 4-Beckenbach, Daugherty, Hill, Woods Nay: 0 MOTION CARRIED C. Sailfish Drive Storm Sewer Point Repair. Director of Public Works Rick Carper explained the repair project stating he is requesting to transfer money from the Seminole Road Stormwater project into his repair budget to pay Insituform to line this pipe. Motion: Authorize the City Manager to transfer $62,000 from the PW Stormwater Account 470-0000- 538-63-00, Project Number PW 1407 (Seminole Road Drainage Improvements) to PW Stormwater Account 470-0000-538-34-00, Other Contractual Services, to allow a 10% contingency on the proposed repairs. Moved by Daugherty, Seconded by Hill Commissioner Hill asked if the same thing is happening on Orchid Street because he has noticed similar failures under the road. Mr. Carper stated those were supposed to have just been repaired last week. He stated Orchid Street is 30 years old and the problem there is probably leakage quite deep, because the sanitary sewer is very deep, but they have just had some repairs done over there. Votes: Aye: 5-Beckenbach, Daugherty, Hill, Woods Nay: 0 MOTION CARRIED D. Approval of City Sanitation Contract Modification and Extension. This item was taken out of sequence and acted on earlier in the meeting. 9. City Manager A. City Manager's Report. City Manager Van Liere asked for direction from the Commission as to whether they wanted to pursue helping Atlantic Beach Elementary with funds for the track, as discussed by Mr. Cottrell earlier tonight. He May 12,2014 REGULAR COMMISSION MEETING AGENDA ITEM# I A JUNE 9, 2014 Page 9 stated they are asking for $14,500. Mr. VanLiere stated he will look through the General Fund budget to see if there is anything we may not get to this year for funds he can repurpose. He stated if he is not able to do that he will have to put in a mid-year budget modification and ask to have it funded that way. Discussion ensued about easier access for citizens to the track. E.K. Cottrell, 1656 Park Terrace East, Friends of Atlantic Beach Elementary, stated access is one of the things they have talked about. He stated there is currently a sign at the two gates, which are normally locked so vehicles can't enter, that advises of the public's right to the track after 5:00p.m. on weekdays or anytime on the weekends. He stated the answer may be as simple as somehow designating that the entry gate is just around the comer. It was the consensus of the Commission to direct the City Manager to move forward with funding for the track. Mr. Van Liere stated they have a lot of parking issues at the beach and it has been suggested that there be no parking allowed on Beach Ave. Mr. Carper explained the section of Beach Avenue they are talking about is 20ft. wide and is one-way traffic. He stated he doesn't see a hazard. Discussion ensued. Commissioner Hill stated he believes the worst thing they could do would be to go after the existing access to the beach. He stated if you are going to get in the way of people accessing the ocean for recreation, no matter where they are from, it is not the right way to handle it. He stated part of our charm is that you can come to this community and find a way to get down to the beach. He stated the real problem is we have homeowners who put in 30ft. driveways and eat up spots and we have homeowners who put rocks and hedges, etc. that eat up spots that were completely available for many years, so at some point we have to say let's leave some parking for people to get to the beach. Chief Classey stated they have received a number of complaints over the last two years but the complaints have been from the same resident over and over again. He stated they evaluated it a number of times and there has not been the accident history that would manifest the danger that this particular individual states there is. He stated this is a bigger issue than just this location. You cannot imagine the number of complaints and requests they get to make places no parking the closer they get to the beach. He stated they have had to come up with a very methodical and fact based system to evaluate those because if it is made on an emotional decision or at a political level then what do they do the next time. He stated they evaluate it by the various safety manual guidelines. He further stated this stretch of Beach A venue is inherently different than the rest of it, if for no other reason than the sheer width. He stated 20 ft. wide is pretty good for a road that is a one-way street. He stated we have two-way streets in the core City that are 15 ft. wide. He stated assuming the cars are parking legally, as required by both State statute and City ordinance, you are leaving a good 12 ft. to go through for one-way traffic. Mayor Woods stated she believes Beach Avenue is not like any other street we have in the City; it is a constant promenade of pedestrians and bicycles. She stated they have said as a Commission that safety for pedestrians and bicycles is their primary concern. Commissioner Beckenbach asked if this is an agenda item. Mr. VanLiere stated he was asking for direction to come back and make it an agenda item or not make it an agenda item at the next meeting. Commissioner Beckenbach stated they could have discussion at the workshop if someone wants to put it on the agenda. Commissioner Daugherty stated he does not believe it is a pedestrian safety issue. Mayor Woods stated since she is the only one concerned about this issue, they will move forward and don't need to belabor it anymore but it is a safety concern. Mr. Van Liere stated they will need a special called meeting before the next workshop for a grant application, and an FDOT report that needs to be approved. He stated he will also be working on a mid-year budget ordinance to clean up some of the items like the City Manager and City Attorney salaries, etc. May 12,2014 REGULAR COMMISSION MEETING 10. Reports and/or requests from City Commissioners and City Attorney City Clerk Bartle AGENDA ITEM# lA JUNE 9, 2014 Page 10 • Stated there is a shortage of committee applications, in particular for the Cultural Arts and Recreation Advisory Committee, and asked that they help get people to apply. Discussion ensued regarding term limits. Commissioner Daugherty • Reminded everyone to come to the Employee picnic. Commissioner Beckenbach • Stated he received a letter from the Commission on Ethics dismissing a complaint that was filed against him and asked that the letter be made part of the record (which is attached and made part of this Official Record as Attachment A). Commissioner Hill • Thanked staff for what has been a pretty heavy workload over the last two or three weeks, with the work on the sanitation agreement, etc. • Attended the last meeting of Cultural Arts and Recreation Advisory Committee and saw a disconnect there; it was crumbling before his eyes a little and he believes something systemic has to be the cause of that because it is a community-based board. He asked the City Manager to review it to see why it is having a disconnect. Mayor Woods • Discussed having an RFP for food trucks at Dutton Island and Tideviews and asked if there was any interest. Commissioner Hill stated he does not believe as a regular ongoing thing it would function properly, nor get the volume they need to function. He stated he does believe if they had a food truck rally, as a one time thing, they would probably have a lot of people attend. Commissioner Daugherty stated parking would be an issue. • Announced the inaugural class of the Citizens Police Academy has just completed an intensive 1 0- week course and will be graduating this Thursday evening, May 15. She congratulated Nancy Bailey for being a graduate. • Announced that the AED Alliance Organization has graciously donated an automated external defibrillator to Atlantic Beach Elementary and thank Harold and Becky Cohn for their generosity. • Attended the Beaches Watch meeting last Wednesday with Commissioner Mark and City Manager Van Liere where Councilman Bill Gulliford and members of the Consolidated Government Task Force gave a report and stated everyone had agreed there was no need to open the Interlocal Agreements. • Stated the City Manager search is on schedule with all Commission and staff interviews completed. • Announced she will be representing Atlantic Beach on Tuesday, May 13, at a luncheon at the Casa Marina hosted by the Jacksonville Area Ship Repair Association with guest speakers to be the Secretary of the Navy and Congressman Ander Crenshaw. • Also announced the Gail Baker Community Center naming ceremony will be at 4:00 p.m. tomorrow. • Stated the HRO workshop has been cancelled for tomorrow and will be rescheduled. • The Mid-week Market will be held Wednesday, May 14, in Bull Park from 3:00-6:00 p.m. • The NEFLC dinner/meeting hosted by the three beach communities will be Wednesday night, May 14, at the Casa Marina Hotel. She stated there is still time for local businesses to donate door prizes. May 12,2014 REGULAR COMMISSION MEETING • The Art Walk in Town Center is this Thursday, May 15 from 5:00-9:00 p.m. • Gospel in the Park will be held Saturday, May 17, which will be their lOth year. AGENDA ITEM# IA JUNE 9, 2014 Page 11 • Darrein' in the Street will be in Town Center on May 17 from 11:00 a.m. to 9:00p.m. She stated you can call241-l 026 to volunteer or for more infmmation. • There will be a Hazardous Waste Collection and on-site shredding in Jacksonville Beach on May 17 from 9:00a.m.-3:00p.m. in their maintenance building at 1460 Shetter Avenue. • On Monday, May 26, the Beaches Memorial Park Veterans ceremony honoring our veterans which will begin at 2:00 p.m. She stated please bring a lawn chair and everyone is encouraged to buy a brick. • The next Commission Workshop will be held on Tuesday, May 27, because of the Memorial Day holiday. City Clerk Bartle wished Mayor Woods a Happy Birthday. Adjournment There being no further business to come before the Commission, Mayor Woods declared the meeting adjourned at 8:56p.m. ATTEST: Donna L. Bartle, CMC City Clerk Carolyn Woods Mayor/Presiding Officer *A Workshop was held on April 28, 2014 for the purpose of discussing these items. Please refer to the Workshop Minutes for the previous discussion. In reMARK BECKENBACH, Respondent. BEFORE THE STATE OF FLORIDA COMMISSION ON ETHICS ATTACHMENT A DAT·E FILE·D APR 3 0 2014 COMMISSION ON ETHJCS ) ) ) Complaint No. 14-022 PUBLIC REPORT AND ORDER DISMISSING COMPLAil'JT On Friday, April 25, 2014, the Commission on Ethics met in executive session and considered this complaint for legal sufficiency pursuant to Commission Rule 34-5.002, F.A.C. The Commission's review was limited to questions of jurisdiction of the Commission and of the adequacy of the details of the complaint to allege a violation of the Code of Ethics for Public Officers and Employees. No factual investigation preceded the review, and therefore the Commission's conclusions do not reflect on the accuracy of the allegations of the complaint. The Commission voted to dismiss the complaint for legal insufficiency, based on the following analysis: 1. This complaint was filed by John L. Fletcher of Jacksonville Beach, Florida. 2. The Respondent, Mark Beckenbach, allegedly serves as a City Commissioner and Mayor Pro Tempore of the City of Atlantic Beach. 3. The complaint alleges that the Respondent voted, on December 9, 2013, to terminate, without cause, the services of the long-serving City Manager and the long-serving City Attorney, after stating that he had lost confidence in them; and that both were terminated by a 3-2 vote. Further, the complaint alleges that the Respondent filed, as a lead plaintiff, a lawsuit against a developer/property owner, seeking to quiet title (in himself and the other plaintiffs) to AGENDA ITEM# lA JUNE9, 2014 property, upon some of which the City holds an easement from the defendant (developer/property owner) in the lawsuit and has placed sewer lines, and seeking money damages. In addition, the complaint alleges that the suit does not name the City as a defendant; but that the City, the developer/property owner, and an organization formed by the Respondent and others were involved in a prior lawsuit challenging the developer/property owner's title to the property, which resulted in a judgment (affirmed by the District Comt of Appeal) in favor of the developer/property owner. Continuing, the complaint alleges that the City Attorney (later terminated by the 3-2 vote) defended the City's interest in the prior litigation (due to the City's interest in acquiring the easement/sewer pipes placement), and that the Respondent did not disclose the existence of the new suit prior to his advocacy and vote for the terminations on December 9. And, the complaint concludes that it was the Respondent's duty to disclose to the City Commission and the public, prior to participating in debate over and voting for termination, that he had filed suit challenging title to property which includes the City's easement; that the two people (City Attorney and City Manager) with the most knowledge of the property's history and prior litigation were "removed," thus benefiting the Respondent's private interests; and that the Respondent "failed in his duty to be transparent before a critical vote that would have an impact on his personal interests." 4. Within the Code of Ethics (Part III, Chapter 112, Florida Statutes), and relevant to the complaint, are the following statutes: VOTING CONFLICTS.-No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business 2 AGENDA ITEM# IA JUNE 9, 2014 associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143(3)(a), Florida Statutes.] MISUSE OF PUBLIC POSITION.-No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This· section shall not be construed to conflict with s. 104.31. [Section 112.313( 6), Florida Statutes.] "Corruptly" means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties. [Section 112.312(9), Florida Statutes.] CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.-No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee ... ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.] For the reasons particularized below, the complaint does not indicate a possible violation of any of the relevant statutes. 5. As to Section 112.3143(3)(a), the voting conflicts law, it requires oral declaration, abstention from voting, and the filing of a memorandum of voting conflict (CE Form 8B), but only as to votes/measures which would inure to the special private gain or loss of the public 3 AGENDA ITEM# lA JUNE 9, 2014 officer or to persons or entities connected to the officer as specified in the statute. And, in many decisions, the Commission on Ethics has found that special private gain or loss is not present where there is uncertainty at the time of the vote as to whether gain or loss would result from the measure and what the nature or degree of the gain or loss might be. See, among others, CEOs 07-14 and 07-15 (city commissioner voting on lawsuit matters).1 Here, it is by no means certain that termination of the City Attorney and the City Manager would affect the Respondent's fortunes in the new lawsuit, especially since the City is not named in it as a defendant, since the City Attorney presumably is not defending the suit, since other counsel presumably are defending the suit for the developer/property owner, since other counsel and management can be provided for the City, if need be, since both the City Attorney and the City Manager are susceptible to participation and cooperation regarding the lawsuit (e.g., as information resources or witnesses) despite their terminations, and since generic issues of title, issue preclusion (e.g., res judicata), and other factual or legal matters particular to the new litigation, rather than the historical knowledge of the City Attorney and the City Manager, likely will have paramount significance to the outcome of the case. Therefore, while it is apparent that the vote caused loss to the City Attorney and the City Manager, there is no indication that special private gain or loss would inure to the Respondent from the vote, such gain or loss being a necessary condition of his having to declare, abstain, and file a memorandum of voting conflict? 1This recognition that where the gain or loss is remote or speculative there will be no special private gain is now codified in the voting conflicts statute, itsel£ Section 112.3143(1), Florida Statutes (2013); Chapter 2013-36, Laws ofFlorida. 2 We are aware of no law or other standard of conduct requiring "general disclosure" of the Respondent's interests regarding the new lawsuit. 4 AGENDA ITEM# IA JUNE 9, 2014 6. Regarding Section 112.313(6),3 it is not inconsistent with the proper performance of public duty for a governing board member to be involved in discussion regarding, and to vote on, the board's decision to terminate the engagement of persons providing services to the board or the political subdivision headed by the board. Further, the complaint's assertion that the terminations of the City Attorney and the City Manager were part of an effort on the part of the Respondent to advantage his private interests merely is conclusory, lacking factual allegations necessary to substantively indicate a possible violation of the statute. Also, it is not uncommon for such personnel changes to occur in situations such as that of the complaint, where a governing board undergoes a political "regime change," especially where, as in the instant complaint, there is no indication that those allegedly terminated held any contract rights or merit system retention rights in the positions. Additionally, Blackburn v. State. Commission on Ethics, 589 So. 2d 431 (Fla. 1st DCA 1991), recognizes that a public officer's receiving a private benefit from legitimate public duty performance (in the instant complaint, personnel terminations/changes) will not render the officer's conduct violative of the statute. 7. Concerning Section 112.313(7)(a), an essential element necessary for a violation is that one holds a conflicting employment or contractual relationship; and an allegation, such as that of the complaint, that one is a plaintiff in a lawsuit does not, in and of itself, indicate the existence of employment or a contractual relationship. Further, under the first part of the statute, a real property title litigation dynamic is not indicative of the Respondent, or anyone else, being "subject to the regulation of," or "doing business with," the City or the City Commission. Under the second part of the statute, assuming arguendo that the Respondent holds some employment 3 Section 112.312(9), Florida Statutes, supplies the definition of "corruptly" applicable to Section 112.313(6). However, it does not, itself, establish a separate standard of conduct. 5 AGENDA ITEM# lA JUNE9, 2014 or contractual relationship, his being a plaintiff in a lawsuit, especially where the City is not a defendant, is not indicative of a continuing or frequently recurring conflict or an impediment to the full and faithful discharge of public duties. Fanizza v. State, Commission on Ethics, 927 So. 2d 23 (Fla. 4th DCA 2006). Accordingly, this complaint is hereby dismissed for failure to constitute a legally sufficient complaint with the issuance of this public report. ORDERED by the State of Florida Commission on Ethics meeting in executive session on April25, 2014. cc: Mr. Mark Beckenbach, Respondent Mr. John L. Fletcher, Complainant MRB/cca!mwf ~p;~ Chair, Florida Commission on Ethics 6