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10-09-14 Minutes Minutes Charter Review Committee Meeting October 9, 2014 City Hall, 800 Seminole Road In Attendance: Committee Members Staff Mark Tomaski,Vice Chairman City Manager Nelson Van Liere Joan Carver, Secretary City Attorney Richard Komando Mike Borno City Clerk Donna Bartle Catherine Carithers Sally Clemens Judith Leroux Absent Don Wolfson,Chairman Tom Goodrich David Vincent Call to Order Dr. Mark Tomaski,Vice Chairman,called the eleventh meeting of the Charter Review Committee (CRC) to order at 5:00 p.m. on October 9, 2014. Approval of Minutes Vice Chairman Tomaski asked if there were changes to the minutes of September 25, 2014. Dr. Carver stated that in the minutes the date should be changed from September 25 to September 11 under Approval of Minutes. She also stated that the minutes of September 11 and of August 21 should be changed to show Mike Borno present since he was inadvertently left off the list of committee members present. Ms. Carithers moved the acceptance of the changes and Ms. Clemens seconded the motion, which was approved by the CRC. Vice Chairman Tomaski stated that the committee would postpone discussion of Sections 40, 45, 59 and 62 until the next meeting at the request of Chairman Wolfson when he will be present. In order to be courteous to both the Committee and the chair and because those sections are complex and may relate to other sections in the Articles, Vice Chairman Tomaski said the committee would postpone discussion of Articles IX, X, XIV and XVII, the articles in which these sections are located. Unfinished Business from the Previous Meeting: Contracts for City Manager, City Clerk and City Attorney Members of the CRC had been distributed copies of the contracts for the City Manager, the City Clerk, and the City Attorney for their review prior to the meeting. City Attorney Komando stated that the issue raised in earlier meetings was that of the evaluation process for these positions, whether it was built into the contracts, whether it should be in the charter and if so, how it should occur. There was then discussion of the evaluation of those in these three positions, whether that should be specified in the charter,and if so how. Ms. Carithers stated that it seems fair to treat the three positions the same with respect to evaluations. Ms. Clemens stated that the requirement for an evaluation should be a part of the charter but not how the evaluation will be conducted. Ms. Carithers and Mr. Borno agreed. Vice Chairman Tomaski suggested that in each of the sections relating to the positions of city manager, city clerk and city attorney there could be a statement that each would have a yearly public review that should include public participation, Ms. Carithers suggested that a public review might be in order because then the commissioners could discuss the evaluation without violating the sunshine law. City Attorney Komando described the evaluation process used in one community in which each of the commissioners grade the manager from one to five on a written form and the results are given at a public meeting. Each of the commissioners grades the manager independently based on their own experiences. He believes the commissioners get feedback during the year from the public relating to the manager. Mr. Borno cautioned that in an open public meeting you could get a witch-hunt and not get to the real problems. Vice Chairman Tomaski expressed the view that it was better to err on the side of openness and that he likes a system in which the commissioners have to indicate publicly how they rate the official. Ms. Clemens suggested that the evaluation should come when the contracts and salary increases are considered. She believes each commissioner should review the official. She would like each commissioner to use the same questions with any additions they might want. She suggested members of the public sending in opinions should do so in writing with their names. Mr. Borno stated that the CRC should not get into process; the issue being considered is how to get the requirement to evaluate into the charter. He noted that in the past the requirement of a review has been in the contract, but not all mayors and commissioners have done the review. He suggested a statement in the charter that all five commissioners will perform an annual review. Charter Review Committee Meeting Minutes of October 9,2014 Page 2 of 5 Ms. Leroux suggested that the human resources person might handle the review. City Manager Van Liere pointed out that the problem with that suggestion was that the human resources director reports to the city manager. He noted, however, that the director is working on an evaluation process for the manager based on International City Management Association guidelines. The city commission wants to have an evaluation system in place before they hire the new city manager. Ms. Leroux wondered if there was a way to have a group evaluation involving all of the commissioners. Dr. Tomaski said that the sticking point is determining what is a public review. There was further discussion of how best to ensure that the city commission will conduct regular evaluations of its staff. City Attorney Komando stated that he didn't feel there was any magic wording. City Manager Van Liere pointed out that the reality was that the year goes by and if everything is going well, the commissioners may ignore the evaluation requirement. He suggested that if the evaluation were tied to the annual salary consideration, the city manager would be motivated to prod the commissioners for the evaluation. Ms. Carithers and Dr. Carver had concerns that tying the evaluation to salary increases might make it less likely to take place or less critical. Ms. Clemens stated that each commissioner should have a private review with the city manager. Ms. Carithers pointed out that if Atlantic Beach is abiding by the sunshine laws, the public would know if an evaluation were done. Mr. Borno stated that using the phrase that "the commission will" is good because it gives the commissioners no choice in evaluating or not. In the past some commissioners decided to perform the review while some did not. Some commissioners met weekly with the city manager and some did not. It went back to the responsibility of the individual commissioner. In his view, evaluation should not be a choice and the results should be public. City Attorney Komando suggested on the basis of the comments of the committee members the following wording: All commissioners shall perform an annual review of the city manager, the city clerk and the city attorney. The review shall be published at the next commission meeting. Ms. Clemens believes the provision should state each commissioner would perform an annual review. Vice Chairman Tomanski stated that the committee members agreed on the desirability of putting the requirement of an annual review in the charter and had put forward several wordings to achieve this: the commission will evaluate...; each commissioner will Charter Review Committee Meeting Minutes of October 9,2014 Page 3 of 5 evaluate...; all commissioners will evaluate...; some also include the requirement that the results be made public. Ms. Carithers moved that the following provision be added to Article XI, Sec. 9. Powers: The commission shall perform an annual review of the city manager,the city clerk and the city attorney. The motion was seconded by Mr. Borno and passed by the Committee. Discussion XI. Recall Elections. Sec. 56. Procedures. No Change. XII. Franchises. Sec. 57. Granting of Franchises. A question was raised regarding the requirement that any franchise for fifteen or more years must be approved by referendum. City Attorney Komando stated that he was not aware of any franchise granted for more than fifteen years. Mr. Borno stated that there is a lot of lobbying in Tallahassee connected with franchises. If there were no referendum requirement, companies would have greater freedom to do whatever they want. The fifteen-year limit gives officials time to review the contract and make any necessary changes. City Attorney Komando pointed out that without the fifteen-year limit stops the commission from granting lifetime franchises. Art. XIII. Tax Administration. Sec. 58. No Change. Art. XIV. Zoning. Art. 59. No Change. Art. XV. Municipal Borrowing. Sec. 60. Authority to Borrow. No Change. Art. XVI. Suits Against the City. Sec. 61. Suits. There was discussion of the words "arising out of an alleged tortuous act" in the first sentence in Sec. 61. City Attorney Komando noted that there is no advantage to having those words in the provision. Mr. Borno moved and Ms Leroux seconded the motion that the words "arising out of an alleged tortuous act" be deleted from Sec. 61. The motion was passed. Charter Review Committee Meeting Minutes of October 9, 2014 Page 4 of 5 There was discussion of the second paragraph in Sec. 61 relating to suits. City Manager Van Liere expressed the view that the commission should be kept informed of potential suits. City Attorney Komando stated that he generally advised his clients not to make a written report since it might be used against the city in a lawsuit. Such a report could be perceived as official and raise liability issues for the city. City Attorney Komando stated that, working with the City Manager, he would bring a revised Sec. 61 to the committee at the next meeting. Discussion on Committee Report to the City Commission City Attorney Komando suggested avoiding definitive statements about what is being recommended since the CRC may want to reconsider some decisions before its final report. Mr. Borno's statement that the report should be an overview summary appeared to be the consensus of the Committee. City Attorney Komando stated that he would not be present for the last half of the November 6 meeting of the Committee. Courtesy of the Floor to Visitors Michael Hoffmann, 176 Camellia Street, stated that he does not believe Atlantic Beach has fair elections as a result of the at-large voting for city commissioners. He asked Vice Chairman Tomaski to ask the City Attorney to look at voter dilution. Courts don't assert themselves unless there is a case. Mr. Hoffman stated that he would like to address the turnout issue. He stated the turnout is irrelevant. By both law and tradition districts are based on population size not on turnout. He noted that the lower turnout is a function of age and income. The three districts on the east side have a population that is older, better educated and more well to do than his district which is less well off,less educated and more mixed ethnically. To get more participation in Atlantic Beach elections, he suggested making them coincide with presidential elections when his district has a 30 to 40 percent turnout. He noted that the representative of his district had not won a majority of the voters in his district in either of his two elections. Chris Jorgensen, 92 West Third Street, observed that the former police chief did not live in Atlantic Beach. He stated that to be the district representative, he has to be elected by those who live in the district he represents. He stated he liked living on the west side; it is a nice neighborhood. The meeting adjourned at 6:50 p.m. on Wolfson, Chair Charter Review Committee Meeting Minutes of October 9, 2014 Page 5 of 5