Email from deLuna1
Bartle, Donna
From:Ben [de-luna-jax@comcast.net]
Sent:Wednesday, February 01, 2012 3:16 PM
To:Bartle, Donna
Cc:Hanson, Jim
Subject:RE: Committee appointments
Thank you for the response.
If there is still need for a pension board member, please consider me for such a position. If I am selected, I will resign from the
Code Enforcement board where I am an alternate.
I believe you have my application and resume on file.
Ben
From: Bartle, Donna [mailto:dbussey@coab.us]
Sent: Wednesday, February 01, 2012 1:13 PM
To: Ben
Cc: Hanson, Jim
Subject: FW: Committee appointments
Ben,
Please see Alan’s comments below. It should answer your questions.
Thanks,
Donna
From: Alan Jensen [mailto:alan@ajensenlaw.com]
Sent: Tuesday, January 31, 2012 9:42 AM
To: Bartle, Donna
Cc: Hanson, Jim
Subject: FW: Committee appointments
Donna: In order to further clarify this issue, and quoting from AGO 2009-48, please consider the following:
"The Florida Supreme Court has stated that a person in the service of the government, who derives his position from a duly and
legally authorized election or appointment, whose duties are continuous in their nature and defined by rules prescribed by
government and not by contract , consisting of the exercise of important public powers, trusts, or duties, as part of the regular
administration of the government is a public officer." State ex rel. Clyatt v. Hocker, 22 So. 721 (Fla. 1897).
This would logically apply to a member of the pension board, so that, since code enforcement board members are officers
under the Fla. Const. provision, one person cannot serve on both the code enforcement board and the pension board at the same
time. This would be dual office holding which is prohibited by the Fla. Const.
However, I have also been asked if a board member who is a public officer, such as a member of the code enforcement board
or the pension board, could be appointed to a committee, such as the upcoming police building committee. Such a committee
member would not be a public officer, in my opinion, since he could not exercise any public powers, trusts or duties, but would
only be in a position to make a recommendation to the city commission.
I hope the above information together with my e-mail yesterday answers your questions, but contact me if we need to discuss
further. Alan
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From: Alan Jensen [mailto:alan@ajensenlaw.com]
Sent: Monday, January 30, 2012 2:20 PM
To: 'Bartle, Donna'
Cc: 'Hanson, Jim'
Subject: RE: Committee appointments
Donna: The Florida Constitution prohibits dual office holding. See Art. II, s.5(a) Fla. Const. The question becomes whether
members of the Code Enforcement Board and the Pension Board are "officers" for purposes of this section of the Fla. Const.
Code enforcement board members have been determined to be officers for this purpose. I would have to do substantially
more research to be certain, but it appears on initial review that pension board members would also be officers for purposes of
this section of the Fla. Const. Thus one person could not sit on both boards since that would be a violation of the prohibition
against dual office holding.
Also, I have not reviewed any city resolutions that might apply to appointment of these or other boards, and am uncertain
if there are any city policies regarding one person serving on two different boards.
AGO 2009-48 contains a good discussion regarding this matter and Ben may wish to review that opinion. I will try to e-
mail it to you. Contact me with any questions or if you want me to do anything further. Alan
From: Bartle, Donna [mailto:dbussey@coab.us]
Sent: Wednesday, January 25, 2012 10:49 AM
To: Alan Jensen
Cc: Hanson, Jim
Subject: RE: Committee appointments
Alan,
Below is an email string between me and Mr. deLuna. Basically, he was interested in serving on the Pension Board of Trustees,
but he is currently on the Code Enforcement Board. I explained to him that you cannot serve on multiple boards at the same
time. So he asked for the provision that says it. I sent him a link to F.S. 99‐021 because I remember this coming up a few
months ago. I don’t have anything else in writing on the issue.
Please read Mr. de Luna’s response and reply as to whether or not he would be able to serve on both boards. If it doesn’t
matter which boards it is, also let me know that.
Thanks,
Donna
From: Bartle, Donna
Sent: Wednesday, January 25, 2012 8:35 AM
To: 'Ben'
Cc: Hanson, Jim; 'Alan Jensen'
Subject: RE: Committee appointments
Ben,
I will have to refer it to the City Attorney.
Thanks,
Donna
From: Ben [mailto:de-luna-jax@comcast.net]
Sent: Tuesday, January 24, 2012 10:56 PM
To: Bartle, Donna
Subject: RE: Committee appointments
This is the e‐mail that I need a response to.
3
From: Ben [mailto:de-luna-jax@comcast.net]
Sent: Wednesday, January 18, 2012 7:29 PM
To: 'Bartle, Donna'
Subject: RE: Committee appointments
Good morning!!
I am not absolutely sure but it seems to me that subsection (6) of Section 99.012 excludes non paid appointees from the
requirements of this section.
I do want to point out that the development board provision in the municipal code does contain a requirement that a member
not be part of another board. See Section 14‐7 of the Code of Ordinances.
Please note that neither the Code Enforcement nor the Pension board provisions have such a requirement. See 2‐141 and 2‐
266.
From my reading of these provisions, it seems to me that a person can be considered for the pension board even though
currently a member of the Code enforcement Board.
Let me know what you think.
From: Bartle, Donna [mailto:dbussey@coab.us]
Sent: Wednesday, January 18, 2012 2:40 PM
To: Ben
Subject: FW: Committee appointments
Ben,
F.S. 99.021 addresses the issue. For your convenience, I have attached the link.
http://www.flsenate.gov/Laws/Statutes/2011/99.012
Thanks,
Donna
From: Bartle, Donna
Sent: Wednesday, January 18, 2012 2:33 PM
To: 'Ben'
Subject: RE: Committee appointments
Ben,
It’s not in our code. I believe I found it in the Florida Statutes a few months ago, but I can’t remember where I found it. I’ll have
to research it in order to let you know, but it came up just a few months ago before we recommended appointing members to
the Pension Board.
Thanks,
Donna
From: Ben [mailto:de-luna-jax@comcast.net]
Sent: Wednesday, January 18, 2012 1:24 PM
To: Bartle, Donna
Subject: RE: Committee appointments
4
Thank you for the information and the assistance.
I look forward to testing the new audio feed.
Can you direct me to the code provision that deals with the prohibition of serving on multiple boards?
Thank you for all your assistance.
Have a great day!
From: Bartle, Donna [mailto:dbussey@coab.us]
Sent: Wednesday, January 18, 2012 11:43 AM
To: Ben
Subject: RE: Committee appointments
Ben,
A new audio feed was installed last week in the Chamber, so we will be testing it out next Monday night.
I have your application on file; however ,it is no longer being considered for vacancies since you have been appointed to the
Code Enforcement Board and you cannot serve on multiple boards.
Nelson said he spoke to you today and you had questions. If this did not answer your question, please call or email me.
Thanks,
Donna
Donna L. Bartle
City Clerk
City of Atlantic Beach
800 Seminole Road
Atlantic Beach, FL 32233
(904) 247‐5809
From: Ben [mailto:de-luna-jax@comcast.net]
Sent: Tuesday, January 17, 2012 7:09 PM
To: Bartle, Donna
Subject: RE: Committee appointments
Thank you.
Any further improvements on the meeting recordings?
Also, is my application for the board member review committee still active?
From: Bartle, Donna [mailto:dbussey@coab.us]
Sent: Tuesday, January 17, 2012 5:08 PM
To: de-luna-jax
Subject: FW: Committee appointments
FYI.
Donna
5
From: Alan Jensen [mailto:alan@ajensenlaw.com]
Sent: Saturday, January 14, 2012 9:55 AM
To: Beckenbach, Mark
Cc: Hanson, Jim
Subject: Committee appointments
Mark: I had a nice talk with Ben Deluna after our Code Enforcement Board meeting this past Tuesday evening. He asked that I
correct the statement I made at the meeting on 1/9 that he did not call me back after my office called him in December.
Apparently there was a mistake in my office and he was not contacted. I thought he had been because his name was checked
off, like the others who in fact were contacted. I apologized to Ben for any inconvenience and told him I would correct that
information with you. If you have any contact with him, I would appreciate you informing him of this e-mail, since I do not have his
e-mail address.
Also, Brooks Rathet called me a couple of days ago, but I have spent the last several days mostly in court, so I have not
spoken with him yet. I will call him early next week. Let me know if you need anything further. Alan
ALAN C. JENSEN, ESQUIRE
935 North Third Street
P.O. Box 50457
Jacksonville Beach, FL 32240-0457
(904) 246-2500
(904) 246-9960 FAX
Alan@AJensenLaw.com
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