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08-26-1998 - Special Workshop 9HE CITY OF ED9EWATER POST OFFICE BOX 100-EDGEWATER, FLORIDA 32132-0100 Mayor Randy G. Allman District 1 Councilman James K. Gornto District 2 Councilman Myron F. Hammond District 3 Councilman Gary W. Roberts District 4 Councilwoman Judith R. Lichter Interim City Manager Kenneth R. Hooper City Attorney Nikki Clayton City Clerk Susan J. Wadsworth August 19, 1998 -PUBLIC NOTICE- The City Council of Edgewater will hold a special workshop sessIOn at 6:00 p.m., Wednesday, August 26,1998, in the Community Center. The purpose of the workshop is to discuss the City Attorney's report in regard to: pending matters, outside legal fees, self~insurance program, purchasing regulations, personnel policies and procedures, and City debt summary. lizm c:\meetings\wkshop9.268 CITY MANAGER'S OFFICE 104 NORTH RIVERSIDE DRIVE (904)424-2404 FAX-(904)424-2409 CITY ATTORNEY REPORT r I. PENDING MATTERS As of September 30, 1997 - 9 Open Lawsuits As of July 13, 1998 - 5 Open Lawsuits As of July 13, 1998 - 8 Closed Lawsuits II. PENDING MATTERS Status of 5 Open Lawsuits III. OUTSIDE LEGAL FEES AND FEES TO CITY ATTORNEY Comparison of Last 3 Years 1995 - 1996 $198,570. 1996 - 1997 $ 85,857. 1997 - 1998 $ 51,000. IV. SELF- INSURANCE PROGRAM Analysis and Recommendations on Program V. SELF - INSURANCE PROGRAM Summary of Claims - 1997 - 1998 1996 - 1997 VI. PURCHASING REGULATIONS Analysis and Recommendation VII. PERSONNEL POLICIES AND PROCEDURES Analysis and Recommendation on Status of Department Heads VIII. CHART SUMMARIZING CITY DEBT IX. CHART SUMMARIZING VALUE OF NEW CONSTRUCTION (Nikki/CityAttorneyReport-TableOfContents) INTER - OFFICE MEMORANDUM EDGEWATER, FLORIDA TO: City Council Interim City Manager FROM: Nikki Clayton /It City Attorney C.A. NO.: 98 -093 DATE: July 13, 1998 SUBJECT: Pending Matters Lawsuits - Open and Closed this Year SUMMARY: At year end September 30, 1997, there were 9 lawsuits pending against the City. To date, 8 pending lawsuits have been closed. 4 new lawsuits have been opened. Lawsuits - Open 1) Belz vs City False Arrest Incident Date - November 12, 1995 Complaint Filed - March 4, 1998 Source of Funds - Self Insurance Fund Status - Please see attached Memorandum 1 , Lawsuits - Open 2) McMahon vs City Contract Labor, Wrongful termination Incident Date - October 6, 1997 Complaint Filed - November 12, 1997 Source of Funds - Coregis Insurance Company Status - Please see attached Memorandum 3) News - Journal vs City Sunshine Law Violation Incident Date - September 30, 1997 - October 1997 Complaint Filed - October 9, 1997 Source of Funds - No damages alleged Defense charged to Self- Insurance Fund Status - Please see attached Memorandum 4) UTE, Edward Keenan, et al vs City Illegal Special Assessment Incident Date - August 6, 1991 Complaint Filed - December 21, 1995 Source of Funds - Self - Insurance Fund Status - Please see attached Memorandum 5) Associates of Meadow Lake, Inc. vs City Inverse Condemnation and temporary flooding Incident Date - various - commencing in 1991 Complaint Filed - Source of Funds - Self - Insurance Fund Status - Donna McIntosh, Esq., Stenstrom, McIntosh, Colbert, Whigham and Simmons, special counsel Circuit Court granted City's Motion for Summary Judgment District Court Reversed Circuit Court. City Council authorized appeal to Florida Supreme Court. Ruling on jurisdiction pending. Please see attached case analysis from Florida Municipal Attorney's Association Seminar. 2 Lawsuits Closed 1) Lorraine Wiley vs Keller, Radnor Corp & City. Trip and fall on sprinkler in City -owned right -of -way Incident Date - September 7, 1995 Complaint Filed - October 3, 1997 Source of Funds - Self - Insurance Fund Status - City dismissed by Wiley on March 26, 1998 2) Elizabeth Hill vs Stilwell and City Negligent maintenance of stop sign Incident Date - June 4, 1994 Complaint Filed - July 31, 196 Source of Funds - Self - Insurance Fund. Status - City settled claim for $7,500.00 on November 20, 1997. Case was dismissed on December 8, 1997 3) Dennis Fischer vs City, McMahon and Karet Labor and employment - wrongful termination Incident Date - December 29, 1993 Compliant Filed - November 11, 1996 Source of Funds - Self - Insurance Fund Status - Fischer dismissed suit on April 23, 1998 4) Mary Louise McDonald vs City Labor and employment - wrongful termination Incident Date - August 12, 1993 Complaint Filed - October 4, 1996 Source of Funds - Self - Insurance Fund Status - 5' District Court of Appeals dismissed case on May 22, 1996 5) Lillian Jaworski vs City Slip and fall on paving debris in City road Incident Date - February 19, 1993 Complaint Filed - May 31, 1996 Source of Funds - Self - Insurance Fund Status - City settled claim for $3,500.00 and case dismissed on December 4, 1997. 3 Lawsuits Closed 6) Stephen Kahle vs City Fell off swing at Menards Park Incident Date - July 4, 1993 Complaint Filed - July 7, 1995 Source of Funds - Self - Insurance Fund Status - City settled claim for $3,500.00 and case dismissed on October 14, 1997. 7) Shellie Hays vs City Labor and employment - EEOC discrimination Incident Date - November 14, 1995 Complaint Filed - June, 1995 Source of Funds - Self - Insurance Fund Status - EEOC dismissed claim on March 13, 1998 8) Rosemarie Lao vs City Recreation Dept. Youth Baseball Program Americans with Disabilities Act (ADA) discrimination, U.S. Dept of Justice Incident Date - Summer, 1996 Complaint Filed - Summer, 1996 Source of Funds - General Fund Status - U. S. Department of Justice dismissed claim on October 14, 1997 4 INTER - OFFICE MEMORANDUM EDGEWATER, FLORIDA TO: City Council Interim City Manager FROM: Nikki Clayton A& City Attorney C.A. NO.: 98 -095 DATE: July 13, 1998 SUBJECT: Pending Matters - Lawsuits McMahon vs City of Edgewater, Randy Allman, Gary Roberts and Myron Hammond, individually and as elected officials • George McMahon, former City Manager, sued the City of Edgewater and 3 Councilmen. McMahon claimed he was wrongfully terminated without notice of charges against him and without just cause. He also claimed his employment contract with the City was breached when he was terminated without cause. McMahon's attorney has performed exhaustive investigation and discovery. He now concedes that the outcome of the case depends on legal issues and not factual questions. The legal issue is whether the City Code and McMahon's contract provide the City Council can terminate him at any time and without cause so long as severance benefits specified in the contract are paid. 1 The City has responded to all of McMahon's requests for discovery. To date, no evidence or testimony has been discovered to support McMahon's complaint. No further action by McMahon has been scheduled or noticed. The City is presently drafting a Motion for Summary Judgment. The Motion asks the Court to find that, as a matter of law, the City was legally correct and McMahon has no legal or factual basis for his suit. A Motion for Attorneys Fees against McMahon is also being drafted based on the fact that McMahon knew he had no legal basis for suit. Please note the following evidence of McMahon's knowledge and understanding: 1. Statement by McMahon to City Council at April 3, 1995 meeting. Excerpt from minutes highlighted. 2. Statements by McMahon and Krista Storey, City Attorney to City Council at May 5, 1997 meeting. Excerpts from minutes highlighted. 3. May 7, 1997, article published in News Journal. • 2 Mayor Hayman feels he and Councilman Hays philosophically understand and support the City Manager form of government but he suggests that they differ on the value and use of performance measures and the determination of goals and objectives that are relative to the services. Councilman Hays stated Council's responsibilities administratively are to evaluate, to set goals and objectives and performance standards for three people. To set anything in , place, that puts Council in the position where the employee will fee-1 like Council can put an unreasonable evaluation on them. What he sees Mayor Hayman asking for is to, in a sense, evaluate each employee and to be able to put that pressure on not only the City Manager but the Department Head and Supervisor and down the line. He doesn't have a problem with the concept of asking the employees for input. He has a concept with Council making that direction. We under no circumstances should make direction to any of these people. They direct to the City Manager and let him ask them. 'City Manager McMahon translated his thought process at this point find time into some input that may be heipful ^MThe Council has authority, regardless of the contract, under the City law and ' Charter to hire and 'fire "at"any given ° Council meeting "by'a consensus vote that can terminate any one of the officers. City Manager McMahon believes this City has to look to the future to its vision and, more than its vision, has to look to the reality of tomorrow. They need to get into the business of experimenting and looking at new ideas. City Manager McMahon stated another idea they may be looking at, and he hopes to bring this to Council's attention before long, is the cost and how we might impact that without going out to contract on rubbish. He is not promoting the fact that we keep or not keep sanitation. He spoke about area cities experimenting with garbage collection being contracted out and once a week garbage collection but suggested keeping the sanitation department. Councilwoman Martin commented on the City Manager form of government and this being voted in to handle administration and take it out of the hands of the elected officers. She doesn't think they want to go back on that vote at this time. Mayor Hayman yielded the gavel to Vice Mayor Martin and made a motion to amend the contracts or employment agreements with the City Manager /Attorney /Clerk to reflect the proposed change which in effect would eliminate the two words and add the word or. Councilman Mitchum asked if this is not something that they would need to look at at a workshop. Mayor Hayman had no problem with doing that but one of the things that drove him to place this on the agenda was the April 30th deadline to make a comment on it. He informed Council he would not be present at the April 17th meeting. Mayor Hayman reiterated the motion, second by Councilman Mitchum. Councilman Hays stated for discussion he feels to alter one word in the contract puts the entire contract back up for negotiation and he is not in favor of it. He is satisfied where we are. The motion DIED 3 -2. Councilman Hatfield, Councilwoman Martin and Councilman Hays voted NO. Page -8- Council Regular Meeting April 3, 1995 Attorney Storey stated the belief that she does hanot bhandle City inaccurate. This City any times is cstarted. sued others and her office provides 46 times since she started. She has handled 26 of those matters. She gatvos as co-counsel t services onnevery other lawsuit. litigation support City Manager McMahon stated he did not go out and hire an Assistant City Manager. He promoted in- house. His responsibilities were to assist in areas that City Manager McMahon wanted him to assist in that he is skilled City Councilman Mitchum spoke about the memo done by Y pttorney • Storey not being a reaction to his continuance of this matter. Councilman Hays spoke on the aneed to haveiayfultim City If we do not keep full-time to make a A Attorney s in is He Attorney. we are going over a spoke representing tt, Store stepping in and taking spoke about City Attorney Y situation and explaining it. Attorney and City Manager McMahon spoke about him, the City Assistant City Manager managing all the City claims on a $ million fund. Attorney Storey not only He would Councilman Hatfield Co n cil but for red several City e of their job working for Cmnitylclausebeaddedwithinsthe scop. clas the indemnity classifications. He asked for Council's feeling. There was some discussion regarding why the indemnity clause needs to be included. City Attorney Storey elaborated on concerns exp ressed. She sees no harm clarifying the indemnity reement. City Manager McMahon had no problem clause in the ag with this either. regarding the Storey presented an example employees in difference Attorney employees man terms indemnificatio e the ouanivage. IndividualvCityle policy terms of to tia efended by the City. That is a p not be automatically decision for the Council to make. public Mayor Hayman stated his comments and differences ferences es with the one contract are not criticism of any the c bli servants. He feels a different class of employee is being Y created that is treated a lot better than the rest of the at employees and he is looking revisions in Mayor Hayman stated he does not support some of the p the contracts. City Attorney Storey elaborated on Mayor Hayman's concerns different employees in this City who may The t classes of employees differently. C hars le is City under the The ischa only her employees, without th pr discharged 'tprotecpions of the union contract, may not be discharged Cause. Councilman Hays stated there is already legislation in p lace which un Hay wh classifies different levels of employees for special treatment. a rofessional firm that came City Manager McMahon commented ob description and in arofile for to the City and a studied every j professional way evaluated that, Council app those and established are every job accountability, responsibility, approved all the Based on job in requi to do. classifications and distinguished clearly between every j the City. Page - 7 - Council Regular Meeting May 5, 1997 M t .,;'•-• as I!J!! E. -4,,�n • : ('t?„ '• c ° - rJ o '� 0 Y > o r* p (D C 2. R^ '.xj "..c "r ' 11 y t y q t w o ` 0 p -3 d : , -,.1, .. " n 0 • ''�' \ i ? „ e � ` ca y a ° 5 it n . i S B O K:w P' I � Q. y p m .. pat • io iuT < 0 `3. 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( y ca. rw ° f b � . ° o 7:0� ;: c a c� ° a v ° C7 ° a CD 5° . 3 w ¢ <(' ^ ao c y • o (D ° A' ao3 ° � €° ' g ° a ° - � o 0. �• G ? v' O CD Erg'. S G 3 Q • S a C ? N X N ,* ' N = ? a O 'L7 n Gav 3co <� Ca ..O(a,cD 7 a °a ° ,< o tics{ ^b Q :I o o a V'. C 5 .0 o C _ N 3 ,o a UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION GEORGE McMAHON, Plaintiff, Case No. 97- 1378- CIV- ORL -19 v. CITY OF EDGEWATER, RANDY ALLMAN, individually and as Mayor of the City of Edgewater, and GARY ROBERTS, and MYRON HAMMOND, individually and as Council men of the City of Edgewater, Defendants. AFFIDAVIT OF SUSAN WADSWORTH STATE OF FLORIDA ) )ss: COUNTY OF Volusia ) I, SUSAN WADSWORTH, being first duly sworn, depose and state that I am over eighteen (18) years of age, that I am sui juris and that this Affidavit is made voluntarily and of my own free will without threats or promises of benefit by or from any person, and is based on my personal knowledge. 1. I am employed by the City of Edgewater, Florida as the City Clerk. In this capacity, I am the custodian of records for the originals of the attached documents, identified herein as Exhibit A, Exhibit B, Exhibit C, and Exhibit D. 2. I certify that Exhibit A is a true and accurate copy of minutes of the Agenda for the Edgewater City Council meeting of April 21, 1997. This document is kept in the course of a regularly conducted business activity for the City of Edgewater and it is the regular practice of the City of Edgewater to prepare Agendas for City Council meetings. 3. I certify that Exhibit B is a true and accurate copy of an Agenda Request for item 7 G of the Agenda for the Edgewater City Council meeting of April 21, 1997. This document is in reference to the agenda item regarding the City Manager's employment agreement with the City of Edgewater and includes language pertaining to the ability of the Council to terminate the employment of the City Manager without cause. This document was executed by George McMahon. Exhibit B is kept in the course of a regularly conducted business activity for the City of Edgewater and it is the regular practice of the City of Edgewater to prepare Agenda Requests for Agenda items. 4. I certify that Exhibit C is a true and accurate copy of minutes of the Agenda for the Edgewater City Council meeting of May 5, 1997. This document is kept in the course of a regularly conducted business activity for the City of Edgewater and it is the regular practice of the City of Edgewater to prepare Agendas for City Council meetings. 5. I certify that Exhibit D is a true and accurate copy of an Agenda Request for item 8 D of the Agenda for the Edgewater City Council meeting of May 5, 1997. This document is in reference to the agenda item regarding the City Manager's employment agreement with the City of Edgewater and includes language pertaining to the ability of the -2- Council to terminate the employment of the City Manager without cause. This document was executed by George McMahon. Exhibit D is kept in the course of a regularly conducted business activity for the City of Edgewater and it is the regular practice of the City of Edgewater to prepare Agenda Requests for Agenda items. I, SUSAN WADSWORTH, state that I have read the foregoing Affidavit consisting of five (5) numbered paragraphs and swear that it is true and correct to the best of my knowledge and belief. Susan W dsworth (Date) The foregoing instrument was executed before me this / day of /411L/5±, 1998, by SUSAN WADSWORTH, who is personally known by me, or has produced as identification and who took an oath. \(rucktn 4// hriAirch._ s �����uluuai�, e . ..'o ' e� No ary Public 4� f N 1 � State of Florida at Large z /CC 688915 ma y'• v �h`�� °•'o�� ivvck / 4/ei6 i a o Type or Print Name of Notary My Commission Expires: 4241 00BN W 896bw -3- EXHIBIT AGENDA REQUEST C.A. NO.: 97 -94 Date: April 29, 1997 PUBLIC HEARING RESOLUTION ORDINANCE OTHER CONSENT BUSINESS 05/05/97 CORRESPONDENCE ITEM DESCRIPTION /SUBJECT: City Attorney, City Clerk and City Manager Agreements BACKGROUND: During the April 21, 1997 meeting, Council tabled this item pending additional review by Council members. Council authorized an extension of the current agreements for an additional thirty (30) days to complete their review. Accordingly, the proposed amendments reflect a termination date of June 30, 1999, instead of May 30, 1999. The current agreements with the City Attorney, City Clerk and City Manager terminate on June 30, 1997. Pursuant to Section 3 of each initial agreement (copies attached), unless written notice is given by the City Council thirty (30) days prior to the termination date that the Council does not want to extend the agreement, the agreement shall automatically be extended for an additional two (2) year period. Also attached for the Council's information is a copy of the 1993 amendment to the City Attorney and City Manager agreements. The 1993 agreement was the initial agreement with the City Clerk. In 1995, there were no changes to the agreements so the agreements simply rolled over. In reference, to review of the three agreements, the Council's consideration of the following items are requested: 1. If the Council determines to terminate the employment of a Charter officer without cause, the agreements provide for 30 days notice plus payment of salary and deferred compensation by the City for a 120 day period. It is requested that consideration be given to the continuation of medical insurance benefits during that 120 day period upon termination of employment without cause. 2. The agreements provide that in lieu of participation in the City's pension plan, the City shall annually contribute 15% of the Charter officer's current salary to the ICMA deferred compensation plan on behalf of the Charter officer. (Since the City Clerk was already vested in the General Employees Pension Plan, she has not selected this option.) Consideration is requested for funding of the ICMA deferred compensation plan at the same level that funding is contributed by the City for the funding of the General Employees Pension Plan. Currently, that level is 18.75% of a participant employee's salary. If the agreements were amended to reflect the funding level of the General Employees Pension Plan instead of a specified percentage, then the Charter officers would be subject to any increase or decrease in the funding level required of the City to maintain the actuarial soundness of that plan. 3. Consideration is requested for the inclusion in the agreements of language providing for the defense and indemnification of the Charter officers against any tort, professional liability claim or demand or other legal action arising out of the performance of the Charter officers' duties except in the case of a conviction for any crime involving moral turpitude or relating to official duties. 4. The Council has authorized a $200.00 per month car allowance for the City Manager. It is requested that this be confirmed within the City Manager's agreement. RECO MMENDATION /CONCLUSION: Council consideration of the four items set forth above is requested. Consistent with the Council's previous directions regarding uniformity within the agreements, attached are three draft amendments setting forth the specific language to implement these proposals. Pursuant to a recommendation from the Finance Director, the amendments also reflect a change in terminology from ICMA deferred compensation plan to ICMA defined contribution plan. FUNDS AVAILABLE: (ACCOUNT NUMBER) (SPECIFY IF BUDGET AMENDMENT IS REQUIRED) PREVIOUS AGENDA ITEM: YES XX NO DATE: 04/21/97 AGENDA ITEM NO. 7G Respectfully submitted, Concurrence: legi Kr a A. S orey ' Kra City Attorney George %. McMahon City pager Susan J. adsworth, CMC City Clerk bcc: Haas, Clayton -3- INTER - OFFICE MEMORANDUM EDGEWATER, FLORIDA TO: City Council Interim City Manager FROM: Nikki Clayton /�� , City Attorney / Y '" C.A. NO.: 98 -098 DATE: July 13, 1998 SUBJECT: Pending Matters - Lawsuits Belz vs City of Edgewater and Officer Raymond Frazee Robert Belz sued the City and Officer Frazee for false imprisonment, battery and malicious • prosecution. On November 12, 1994, Belz was arrested for "driving while license suspended or revoked ". He was detained in an Edgewater police car. Within minutes of the arrest, Officer Frazee determined that it was not Robert Belz, but his brother, Edward John Belz, whose driver's license was suspended. Officer Frazee released Robert Belz and arrested his brother. Upon review and investigation, this appears to be a case without merit - perhaps even frivolous. The City has filed its Answer. As soon as the Plaintiff has been deposed, the City expects to file a Motion to Dismiss and a Motion for Attorney's Fees. dr I b lql . t INTER- OFFICE MEMORANDUM EDGEWATER, FLORIDA TO: City Council Interim City Manager FROM: Nikki Clayton A j City Attorney / v C.A. NO.: 98 -097 DATE: July 13, 1998 SUBJECT: Pending Matters - Lawsuits News - Journal Corporation vs City of Edgewater, Randy Allman, Gary Roberts and Myron Hammond The News - Journal sued the City and 3 Councilmen on October 9, 1991 The newspaper alleged 1) violation of the Sunshine Law and 2) violation of the Public Records Law. The 2" allegation regarding Public Records Law was voluntarily dismissed by the newspaper due to lack of evidence. Extensive investigation and discovery has been conducted by the newspaper, its reporter, and a Councilman defeated in the last election. That Councilman, Mike Hays, hired a private investigator to follow the 3 Council members. He also conducted his own surveillance. Hays has testified that Mark Karet, Don Green, Krista Storey's husband, and he were drinking beer together at Hays' house when they decided to stake out Myron Hammond's business. (That same night, Myron Hammond filed a police report about an unidentified vehicle with 2 men acting strangely outside his business.) 1 r The allegations have been denied by the City and 3 Councilmen. They have asked the News - Journal and its reporter to disclose under oath at deposition the personal knowledge they have to support their Complaint. The News - Journal and reporter have refused to testify claiming immunity as news reporters. The Court has ruled that the City must try other means, such as a Motion for Summary Judgment, to flush out the newspaper's case. If the newspaper tries to "ambush" the City, the Court will overturn its qualified immunity and require the newspaper to submit to deposition. The City's strategy has been to cooperate with all the discovery efforts of the newspaper. When the newspaper has exhausted its investigation and fishing expeditions, the City intends to file a Motion for Summary Judgment. To date, no evidence or testimony has been discovered to support either of the newspaper's two allegations. The City has responded to all of the newspaper's requests. No further action by the newspaper has been scheduled or noticed. 2 INTER- OFFICE MEMORANDUM EDGEWATER, FLORIDA TO: City Council Interim City Manager FROM: Nikki Clayton fi c, City Attorney C.A. NO.: 98 -096 DATE: July 13, 1998 SUBJECT: Pending Matters - Lawsuits Edward Keenan, George Naill, Casper Mannone, Mike Nattress, et al. (United Taxpayers of Edgewater - UTE) vs City of Edgewater The named individuals and others belonging to U.T.E sued the City alleging that sewer assessments imposed in the Florida Shores Improvement Area Special Assessment District (District) were invalid because they were unfair and inequitable. In March of 1991, the City adopted an Ordinance establishing the assessment district and procedures for implementation of the assessments. Numerous public hearings, written notices to property owners and other public discussions were held during the spring and early summer of 1991. On August 6, 1991, City Council adopted the final assessments for each benefitted property which was the last step in the Program. The assessments were equalized or adjusted for fairness at the same time. 1 Property owners in the District presented City Council with a petition signed by approximately 2,100 owners on or about August 6, 1991. The petition alleged that the assessment program was unfair and inequitable. 4 Vi years later, on December 21, 1995, certain individuals filed this suit re- alleging objections contained in the petition. When the District was established in March, 1991, the Ordinance provided that any challenge to the assessments "shall be initiated in a court of competent jurisdiction to secure relief within 20 days following the date of Council action on the Final Assessment Resolution (August 6, 1991). The applicable statute of limitations is four years. Plaintiff believed it to be 5 years. The Circuit Court granted the City's Motion to Dismiss and held that the suit was barred by the 4 year statute of limitations. The 5 District Court of Appeals affirmed. The Florida Supreme Court denied jurisdiction. The prior City Council then authorized filing a motion to assess attorneys fees against the property owners and U.T.E.. That motion is still pending. The City retained the firm of Nabors, Giblin and Nickerson as special counsel to defend against the suit. To date, the City has paid the firm approximately $40,300.00 in fees. Summary and Recommendation: Although hindsight is always 20 -20, every effort should be made to avoid litigation of this type between a City and its citizens. A huge amount of time, emotion and money is required from both sides. No matter the outcome, a sense of anger and frustration builds in the community and lasts long after the case is closed. The property owners in this case wanted to know the answers to the following questions: 1) Whether the assessed property owners of Florida Shores are receiving a special benefit as a result of a new sewer plant and sewer lines constructed in the City of Edgewater. 2) Whether the ordinance approving sewer assessments complied with the notice requirements of Chapter 166 and 170, Florida Statutes. 3) Whether the sewer assessments violate equal protection in that the contributions to these systems made by other City property owners, who share equally in the use of these systems, are much smaller or non - existent. 4) Whether the City has commingled, mismanaged or misused funds contributed by the Plaintiffs for other unauthorized purposes than the sewer systems,. 5) Whether the City has not applied other revenue contributions that are pledged towards payment of the sewer system. 2 Although the case is closed, it did not address these questions. These were and continue to be good questions. They should be answered. Based on my review and understanding of the Assessments, I know the City has good answers to these questions. Therefore, I believe the City should provide their answers to the questions. I am convinced, with a better understanding of the Assessments, the plaintiffs and all the residents in the City will be satisfied that the Program is fair and equitable to all. My recommendation is that the City prepare a response to the questions. The information is readily available. When the response is prepared, a public workshop with the plaintiffs and any interested citizens should be scheduled to discuss the City's answers. The Assessment Program is a success story for the City. Anything which improves people's understanding of it is beneficial to the City. In the meantime, with regard to the pending Motion for Attorney's Fees, the court usually awards fees only when the suit is frivolous or brought in bad faith. Since that is not the case here, my recommendation is both parties should agree the case is over and acknowledge same with a Joint Stipulation of Dismissal. 3 TEMPORARY REGULATORY AND PHYSICAL TAKINGS Robert C. Apgar Gerald Murphy, Jr. APGAR & PELHAM Tallahassee, Florida I. Temporary Regulatory Takings II. Temporary Physical Takings When the government physically occupies or takes title to private property a physical taking occurs. While this physical taking may not persist permanently, it may still require compensation for the period of time the owner is denied the use of his or her property. The concept of temporary physical takings is not new, and while the issues involved in temporary regulatory takings can extend to temporary physical takings, the measure of damages is generally the fair market rental value of the land. See for example, Kimball Laundry Co. v. U.S., 338 U.S. 1 (1949); U.S. v. General Motors Corp., 323 U.S. 373 (1945); Yuba Natural Resources. Inc. v. U.S., 904 Fed. Cir. 1990). Compared with temporary regulatory takings cases, reported Florida temporary physical takings cases are relatively few; but clearly Florida courts recognize a cause of action for inverse condemnation in such cases, and while no reported cases have awarded compensation, they have recognized that temporary takings are compensable. As the following discussion demonstrates, however, there is an unfortunate lack of clarity in decisions. In Diamond K Corporation v. Leon County, 677 So. 2d 90 (Fla. 1st DCA 1996), the plaintiff alleged that drainage activities by the county and FDOT in conjunction with a creek utilized for stormwater management caused widening of the creek and improper drainage of plaintiff's property during rainstorms. The court found no taking because the record below contained no evidence that any activity on the part of either appellee had permanently deprived Diamond K of all beneficial use of its property, and thus no basis to reverse the trial court's conclusion that the actions of the appellees did not constitute a taking. 677 So. 2d at 91 (citing State. Dept. of Transp. v. Donahoo, 412 So. 2d 400 (Fla. 1st DCA 1982)). In Associates of Meadow Lake. Inc. v. City of Edgewater, 706 So. 2d 50 (Fla. 5th DCA 1998), the plaintiff /land developer sought inverse condemnation against the city for continuous flooding caused by the city's construction of a public park without a properly functioning storm water management system. Though the city remedied the flooding problem within the same calendar year, the fifth district found that remedial action by a governmental authority causing flooding does not necessarily preclude an action for temporary taking against the authority. 706 So. 2d at 51. Noting the United States Supreme Court's recognition of a cause of action for temporary takings in First English, the Meadow Lake court found that since that decision, Florida recognizes temporary takings as being compensable under its constitution. 706 So. 2d at 52 (discussing In re Forfeiture of 1976 Kenworth Tractor Trailer Truck, Altered VIN 243340M, 576 So. 2d 261 (Fla. 1990) (return of improperly physically appropriated truck after two years "did not cause the `temporary taking' to not be compensable under the Florida Constitution"). In comparison with Meadow Lake, at first blush, it might seem that Diamond K was wrongly decided, particularly to the extent of the opinion's citation of Donahoo, a pre - First English decision, and the court's reference to the finding below that Diamond K was not "permanently deprived" of all use of its property. 677 So. 2d at 91. On closer examination, however, it is more likely just an unfortunate choice of language by the Diamond K court. This is not an uncommon occurrence in the written opinions of courts deciding takings cases and often gives land -use lawyers pause. Not dissimilar in this regard, is the Meadow Lake court's statement: "If substantial periodic flooding occurred and was expected to recur and such flooding denied Associates any reasonable use of its property because Edgewater defectively constructed its project, a cause of action for inverse condemnation does lie." Meadow Lake, 706 So. 2d at 52 (emphasis added). CITY OF EDGEWATER City Manager's Office MEMORANDUM DATE: November 19, 1997 TO: City Council FROM: Ken Hooper, Interim City Manager SUBJECT: Outsourcing of City Attorney Function The City of Edgewater has appropriated $153,000 for the City Attomey's 1997/98 budget. This includes salaries, benefits, supplies, travel and a minor amount for contracted services ($4,000). They appropriated $140,307 and $150,695 for FY 95/96 and FY 96/97, respectively. The City has also contracted with "outside" legal firms for various actions during the same time period. The City paid approximately $198,600 and $83,500 for outside legal services in FY 95/96 and FY 96/97, respectively. The City has averaged approximately $141,000 per year for outside legal counsel since 1995. Enclosed is a memorandum from Robin Wolf, Legal Assistant, describing the use of outside legal firms. Based on the cost of the internal legal department ($153,000) and the cost of external legal expenses ($141,000), the City can expect to spend approximately $300,000 for legal service during FY 97/98. As requested, Nikki Clayton (Interim City Attorney) and I have reviewed the option of not filling the City attorney position and seek outside legal service for a contracted legal firm. If a multi- discipline legal firm were obtained, many of the current contracts could be consolidated. Legal firms that represent cities similar in size, population and budget as the City of Edgewater would be very interested in serving the City. Typical rates for legal representation of similar cities range from $100- $140 /hour and average $125,000 to $150,000 per year. A fee volume of this size would include legal representation of the City Council, Citizen Code Enforcement Board, and Land Development and Regulatory Agency. This would include the normal operation and function of the City. Extraordinary lawsuits or special financing issues may increase the annual cost for legal coverage. Based on the cost of outside legal fees since FY 95/96 and the existing FY 97/98 budget for the legal department, I believe the City can annually save money by "outsourcing" the function of City Attomey. Based on the existing expenditures by the City of Edgewater and the cost of legal contract services by other similarly sized cities, the City of Edgewater should save an annual range of $50,000 to $100,000 and maintain acceptable legal coverage. Recommendation: Authorize an advertisement seeking legal contract services for the City of Edgewater. Bring all qualified applicants to City Council for an interview. KRH:suek Enclosure SURVEY OF SERVICES BY CITY ATTORNEY MONTH OF HOURS HOURS AMOUNT OF SERVICE EXPENDED CHARGED INVOICE 10/06/97 - 10/31/97 122 100 $ 10,000.00 11/03/97 - 11/08/97 118 100 10,000.00 12/01/97 - 12/31/97 105 100 10,000.00 01/05/98 - 01/31/98 102 100 10,000.00 02/01/98 - 02/28/98 93 93 9,300.00 03/01/98 - 03/31/98 66 66 6,600.00 04/01/98 - 04/30/98 126 100 10,000.00 05/01/98 - 05/31/98 103 100 10,000.00 06/01/08 - 06/03/98 129 100 10,000.00 07/01/98 - 07/31/98 102 100 10,000.00 I ITOTALS: 10 mths II 1,066 II 959111 $ 95,900.0011 • City Attorney contract establishes a ceiling of $120,000.00. The ceiling is $6,000.00 less than amount paid to previous City Attorney. • Hours expended on behalf of City exceed hours charged by 107 hours. The City has not been charged for 107 hours. • The effective rate for services rendered is $90.00/hour. • The City paid the former City Attorney, Krista Storey, $126,451.10 in salary and benefits. Her effective rate for services was $61.00/hour if she worked a full 2,080 hours during the year. • The current contract provides 2 advantages to the City: ♦ The City is only charged for hours worked. • The City is protected by a ceiling so legal fees will not exceed the ceiling regardless of the hours of service the City requires. (Forms / Table- SurveyOfServicesByCityAttorney) J .aik INTER- OFFICE MEMORANDUM EDGEWATER, FLORIDA TO: City Council Interim City Manager FROM: Nikki Clayton City Attorney Ar C.A. NO.: 98 -084 DATE: June 30, 1998 SUBJECT: 3 Year Comparison - Outside Legal Fees SUMMARY: Total Outside Legal Fees 1995- 1996- 1997- 1996 1997 1998 $198,570. $85,857. $51,000. 1995- 1996- 1997 - Name of Law Firm 1996 1997 1998 Dean, Ringers, Morgan & Lawton 43,348.20 38,766.42 18,879.16 (Suits /claims for damages /injuries) Stenstrom, McIntosh, Colbert, Whigham 4,093.75 7,084.78 8,483.37 (Inverse condemnation case - Associates of Meadow Lake, Inc.) Foley & Lardner 105,845.31 12,351.10 (Breach of contractlS &E Construction) (Memo /98 -084) 1996- 1996- 1997 - Name of Law Firm 1996 1997 1998 Coffman, Coleman, Andrews & Grogan 497.26 4,162.85 (Employment/personnel issues) Nabors, Giblin & Nickerson 21,107.99 19,065.85 75.00 (Keenan - United Taxpayers suit) Squire, Sanders & Dempsey 15,324.18 (Bond issue) Baker & Hostetler 8,353.27 524.76 (Jack Randall case) Cobb, Cole & Bell 3,901.62 (Various) Muller, Mintz, Kornreich, 23,562.78 Caldwell, Casey, Crosland & Bramnick (News - Journal & McMahon suits) TOTAL: 198,569.96 85,857.38 51,000.31 (Memo /98 -084) 2 f t .■iiK I — Ili ti c--3 INTER - OFFICE MEMORANDUM EDGEWATER, FLORIDA TO: City Council Interim City Manager FROM: Nikki Clayton /v(1 City Attorney C.A. NO.: 98 -092 DATE: July 10, 1998 SUBJECT: City of Edgewater Self - Insurance Program LEGAL CITATIONS: Edgewater Code of Ordinances Article IV, Sections 2 -61 - 2 -68 and Ordinance Nos. 86 -0 -30 • 90 -0 -29 93 -0 -12 86 -0 -30 Self - Insurance Program 90 -0 -29 93 -0 -12 I. Background Code Sections: In 1986, the Edgewater City Council established a Self - Insurance Program by Ordinance §2 -61 No. 86 -0 -30. To carry out the purposes of the Self - Insurance Program, a Trust Fund was §2 -62 created. Money in the Trust Fund could only be spent in accordance with the Ordinance. 1 §2 -61(7) The Ordinance specifies that the Trust Fund shall be segregated from other funds m the §2- 61(1) -(7) City Treasury. All monies appropriated or received by the City shall be deposited in the Trust Fund as follows: 1. Money to pay claims or judgments against the City; and 2. Money to pay insurance premiums; and 3. Money for hurricane disaster; and 4. Money from others to pay tort claims in favor of the City; and 5. Money from fines and forfeitures levied against City employees responsible for preventable accidents; and 6. Money from insurer's for insured losses; and 7. Interest earned from investment of money in the Trust Fund. §2 -63 A Self - Insurance and Insurance Committee consisting of the City Manager, City Attorney and Finance Director was created. Each Committee member is required to take an oath §2 -65 of office and provide written acknowledgment of acceptance of the duties, responsibilities and authority as a member of the Committee. §2 -63 Duties of the Committee include administration of the Self - Insurance Program and maintenance of appropriate records in order to show status of the Program and to determine amounts for reserves. §2 -63 The Committee recommends to the City Council how much money to accumulate and §2 -66 maintain in reserve in the Trust Fund, and how much to appropriate annually to Insurance and the Self - Insurance Program. According to Section 2 -66 of the Ordinance, the intent was to establish a Self - Insurance Program that operated like a commercial insurance company. §2 -67 In order to start up the Program, the Committee was required, just like a commercial insurance company, to calculate how much was needed to fund the Program. The Committee was specifically directed to ascertain that the City's financial interest be fully protected at all times. §2 -67 The Program was designed so the City Council would appropriate enough money to the Trust Fund to cover any and all losses which otherwise would be covered under primary insurance policies. On top of the Self - Insurance Reserve, umbrella coverage would be purchased to insure against catastrophic losses. §2 -67 If adequate financial reserves haf not been established or it was determined more economical to buy commercial insurance policies for certain risks, the Committee was authorized to use Trust Funds to pay the premiums. 2 §2 -67 The Committee was directed to obtain adequate qualified personnel and equipment to carry out the Program. Use of regular City employees, independent contractors or personnel hired specifically for the Program was authorized. §2 -68 Legal services including investigation, negotiation, defense or prosecution of claims or suits was under the supervision of the City Attorney. §2 -68 The Self - Insurance Committee or its designated claims adjusters were authorized to settle claims up to $1,000.00. Settlement of claims in excess of $1,000.00 required approval by the City Council. Any reports needed by the Committee or the City Council in the settlement of claims were to be provided by the City Attorney. H. Conclusions and Recommendation: I have reviewed the Self - Insurance Program files of the City Attorney, City Manager and Finance Director as well as the applicable Ordinances and Audited Financial Statements since establishment of the Program. 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Q Q° €1." 4 0 � � 0 =.- 0 0, co CD ` n C3 e a C 0 E. P N 0 F z 0 o C c ° P5• cP ° r � M n 71 - C" y N r 5 t1 z z O c rki 0 a c Z Y � ' P o C �' r° '-C c ' a E 0 6 R. ° o ril Zi c a p rfl t., O r* �. r o (i) E. P g CA cp F2. 5• 1 0 9" c cm N = n 9 n CD 0 0 F 00 - b � 00 ~ E. `r'S o ° aG 00 00 00 Q = 4 4 d 0 " N fID 0 n C o. A f9 c7 'zi '0 , 0 n 0 0 CD 0 0 . , o n t7 o a ' � o n >v 0 P Z. o , °r c 0 a: R. c n 0 0 n o m5' 5. o 0` d cD 0 b r r n r ; z �ro n cp 9�r c p n, - c) p vac b C o o � f( a � U. .1 o r � . N AD CI. 0'\ X CD Z 9c 0 P o Ct E. cn CD . b cr 0 0 0 w 5 0 J G © z INTER - OFFICE MEMORANDUM EDGEWATER, FLORIDA TO: City Council Interim City Manager FROM: Nikki Clayton City Attorney C.A. NO.: 98 -100 DATE: July 13, 1998 SUBJECT: Purchasing Regulations Resolution No. 96 -R -08 Adopted April 15, 1996 On April 15, 1996, the City repealed its prior Ordinance on Purchasing and adopted Ordinance 96 -0- 03. The new Ordinance provided that the City would adopt purchasing regulations by Resolution which shall be binding on everyone in City government. On that same date, Resolution No. 96 -R -08 was adopted setting out the Purchasing Regulations. For the last 2 years, City business has been conducted subject to these regulations. I have reviewed the Purchasing Regulations and have the following comments: 1) Purchasing does not appear linked to the budget process. 2) Good financial planning would require a budget process that plans expenditures to support 1 City programs (capital expenditures) and routine operations (direct pay items). The City of Edgewater has not done capital budgets. The Purchasing Regulations do not differentiate between capital purchases for City programs and those items purchased for routine day -to- day operations. 3) the City Manager and Finance Director are responsible for implementation and enforcement. No centralized record keeping or coordination is required. No penalties or guidelines for enforcement are provided. 4) The Regulations state that they are supplemental to state law. No reference to what those laws are or what they required is provided. 5) There is no Section that provides definitions. 6) A master bidders list is permitted but the Regulations do not require competition among vendors to be listed or notice to vendors that the list exists. 7) A sole- source exemption from competitive bidding is too broad. It encourages attempts to avoid competitive bidding. A few months ago, my office had to advise the City Manager and Assistant City Manager that a proposed purchase of $88,000.00 in computer hardware and software could not be justified as a sole- source purchase. In addition, there had been no needs assessment for that particular purchase. The Regulations do not have procedures for how the City should define what it wants to buy and why. 8) The Regulations have too many exemptions to competitive purchasing procedures. The exemptions are not well- defined. Summary and Recommendation: • Based on my review of the Purchasing Regulations as described above, I would recommend that City Council authorize the City Manager to prepare the appropriate revisions for Council consideration. 2 INTER- OFFICE MEMORANDUM EDGEWATER, FLORIDA TO: Ken Hooper Interim City Manager FROM: Nikki Clayton / /l/ City Attorney '" C.A. NO.: 98 -094 DATE: July 10, 1998 SUBJECT: Department Head Status As you requested, I have reviewed the City's Personnel Policies and Procedures that relate to the employment status of Department Heads. I have also discussed the matter with David Kornreich, Esquire, a leading authority in Florida on labor and employment law. . Under the City's existing personnel policies, it is our opinion that Department Heads are hired and fired and otherwise accountable to the City Manager. At a recent staff meeting, when asked the question, Department Heads confirmed that to be their understanding as well. Nevertheless, last year, two Department Heads, who are no longer with the City, commented in depositions that they believed themselves entitled to the same termination procedures as the rank and file employees. Rank and file employees have the right to appeal their termination through the ranks up to the City Manager. Under the City's Charter and Personnel Policies, Department Heads can only be terminated by the City Manager. A system which would require the City Manager to conduct a hearing to review his own decision regarding a Department Head would not serve any useful purpose. Therefore, in order to assure that the personnel policies cannot be misinterpreted or stretched beyond their plain meaning, we would recommend the following amendment: Department Heads are appointed employees who serve at the will and pleasure of the City Manager. The City Manager, therefore, has the sole authority to suspend, terminate, or otherwise discipline any Department Head, with or without cause. Department Heads shall have no entitlement or access to the disciplinary action and employee grievance procedures set forth in these Personnel Policies and Procedures or any other due process procedure conferred by federal, state, or local law. If you concur, I will prepare the Agenda Request and corresponding Resolution for consideration by the City Council at its August 3rd meeting. Please note the draft memo advising Department Heads of the proposed action. • NOTICE DATE: TO: All Department Heads FROM: Ken Hooper, Interim City Manager SUBJECT: Proposed Amendment to City's Personnel Policies and Procedures Establishing Department Heads as "At Will" Employees With No Access to Disciplinary Action and Grievance Procedures As Interim City Manager, one of my goals is to endeavor to rectify current City practices and procedures which do not conform with well - established professional municipal administration standards. In the overwhelming majority of cities and counties that operate under a Manager /Commission (Council) form of government, the Manager serves at the will and pleasure of the Commission (Council), and the Department Heads serve at the will of and pleasure of the Manager. This, of course, means that neither the Manager nor the Department Heads have access to the grievance or appeals procedures available to their subordinate employees in the event of suspension, termination, or any type of disciplinary action. In reviewing the current City of Edgewater Charter and Personnel Policies and Procedures, it is readily apparent that the City Manager serves at the will and pleasure of the City Council. On the other hand, there is a lack of clarity as to the relationship between the City Manager and his /her Department Heads. In this regard, while it is clear that the City Manager has the authority to terminate or otherwise discipline a Department Head, it is not clear whether that Department Head may have the right to a pre - termination hearing or other form of hearing before the City Manager. Needless to say, a system which requires the City Manager to conduct a hearing to review his /her own personnel action makes no sense whatsoever. Having previously served as both a Department Head and as a Manager in the same County government, I am well aware that no municipal organization can function effectively if its Department Heads are not completely accountable to the Manager. Indeed, if the Manager has no confidence in a particular Department Head, for whatever reason, the Manager must be free to sever his /her relationship with that Department Head in a professional manner and without regard to burdensome and useless procedures. In view of the foregoing, you are hereby advised that it is my intention to request that the City Council, at its meeting of August 3, 1998, adopt a resolution amending the City's Personnel Policies and Procedures, to add the following paragraph to subsection 1.00 General Policy of Section I- Introduction, as follows: SECTION I - INTRODUCTION 1.00 GENERAL POLICY It is the Policy of the City Council of the City of Edgewater to: A. Attract and recruit the best qualified candidates from the competitive market. B. Create a positive and productive environment by providing employees with opportunities for advancement and career development. C. Provide reasonable compensation, benefits, assurance and safeguards to its employees. D. Maintain public confidence in productivity, fairness and cost effectiveness through the establishment of a system of personnel administration maintained and governed by principles and affirmative action guidelines which shall be based upon fair and objective personnel standards and measures. These Personnel Policies and Procedures provide guidance to the City in personnel matters. Nothing in this document constitutes a contract of employment. Authority for the Personnel Policies and Procedures is established by Article IV, Section 4.07 of the Charter of the City of Edgewater. The provisions of the Personnel Policies and Procedures shall be applicable to all City of Edgewater departments, divisions, offices, operations, and agencies unless specifically exempted herein. The terms of employment of the City Manager, City Attorney and City Clerk are established pursuant to the agreements negotiated with the City Council. In the case of a conflict between the Personnel Policies and Procedures and the respective agreements, the contents of the agreement shall prevail. Department Heads are appointed employees who serve at the will and pleasure of the City Manager. The City Manager, therefore, has the sole authority to suspend, terminate, or otherwise discipline any Department Head, with or without cause. Department Heads shall have no entitlement or access to the Disciplinary Action and Employee Grievance Procedure set forth in these Personnel Policies and Procedures or any other due process procedure conferred by federal, state, or local law. Should you desire to address the proposed Amendment, you may submit your written comments to the City Clerk for entry into the public record, or you may personally appear to express your views at the public meeting on August 3, 1998. RESOLUTION NO. 98- R- Personnel A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA, AMENDING SUBSECTION 1.00 GENERAL POLICY OF SECTION I- INTRODUCTION OF THE CITY'S PERSONNEL POLICIES AND PROCEDURES TO ADD A PARAGRAPH ESTABLISHING THAT DEPARTMENT HEADS ARE "AT WILL" EMPLOYEES WITH NO ACCESS TO DISCIPLINARY ACTION, GRIEVANCE, OR OTHER DUE PROCESS PROCEDURES; REPEALING ALL RESOLUTIONS IN CONFLICT HEREWITH AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City Council of Edgewater has reviewed and determined the need to amend the City's Personnel Policies and Procedures to provide the City Manager with authority over Department Heads consistent with professional standards of municipal administration; and WHEREAS, the City Manager is responsible for the management and operations of the City, and the City's Department Heads must be fully accountable to and have the confidence of the City Manager; and WHEREAS, in order to fill his /her management responsibilities, the City Manager must have the sole authority to suspend, terminate, or otherwise discipline any Department Head with or without cause and without such Department Head having any access or entitlement to disciplinary action, grievance, or other due process procedures available to subordinate employees under the City's Personnel Policies and Procedures or conferred by federal, state or local law. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Edgewater, Florida: Section 1. Subsection 1.00 General Policy of Section I- Introduction of the City's Personnel SECTION I - INTRODUCTION (Resoluti /98 -R- Personnel) 1 1.00 GENERAL POLICY It is the Policy of the City Council of the City of Edgewater to: A. Attract and recruit the best qualified candidates from the competitive market. B. Create a positive and productive environment by providing employees with opportunities for advancement and career development. C. Provide reasonable compensation, benefits, assurance and safeguards to its employees. D. Maintain public confidence in productivity, fairness and cost effectiveness through the establishment of a system of personnel administration maintained and governed by principles and affirmative action guidelines which shall be based upon fair and objective personnel standards and measures. These Personnel Policies and Procedures provide guidance to the City in personnel matters. Nothing in this document constitutes a contract of employment. Authority for the Personnel Policies and Procedures is established by Article IV, Section 4.07 of the Charter of the City of Edgewater. The provisions of the Personnel Policies and Procedures shall be applicable to all City of Edgewater departments, divisions, offices, operations, and agencies unless specifically exempted herein. The terms of employment of the City Manager, City Attorney and City Clerk are established pursuant to the agreements negotiated with the City Council. In the case of a conflict between the Personnel Policies and Procedures and the respective agreements, the contents of the agreement shall prevail. Department Heads are appointed employees who serve at the will and pleasure of the City Manager. The City Manager, therefore, has the sole authority to suspend, terminate, or otherwise discipline any Department Head, with or without cause. Department Heads shall have no entitlement or access to the Disciplinary Action and Employee Grievance Procedure set forth in these Personnel Policies and Procedures or any other due process procedure conferred by federal, state, or local law. Policies and Procedures is hereby amended to add the following new paragraph: Section 2. The Interim City Manager and City Attorney are directed and authorized to make certain that the aforesaid Amendment is included as part of the City of Edgewater's personnel system and Administrative Code. Section 3. All resolutions or parts of resolutions in conflict herewith be and the same are hereby repealed. Section 4. This resolution shall take effect upon adoption. (Resoluti /98- R- Personnel) 2 After motion by and second by , the vote on this resolution is as follows: Mayor Randy G. Allman XXX Councilman Jim Gornto XXX Councilman Myron F. Hammond XXX Councilman Gary W. Roberts XXX Councilwoman Judy Lichter XXX PASSED AND DULY ADOPTED this day of , 1998. ATTEST: CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA • By: Susan J. Wadsworth Randy G. Allman City Clerk Mayor APPROVED FOR FORM AND CORRECTNESS: Nikki Clayton City Attorney (Resoluti /98 -R- Personnel) 3 .4 INTER - OFFICE MEMORANDUM EDGEWATER, FLORIDA TO: All Department Heads FROM: Nikki Clayton /1161(A City Attorney C.A. NO.: 98 -115 DATE: August 25, 1998 SUBJECT: City Attorney Report Personnel Policies and Procedures Analysis and Recommendation on Status of Department Heads At the City Manager's request, I reviewed the status of Department Heads under the City's personnel policies. A memo with my analysis was prepared July 13 A copy of my memo, with attachment, is enclosed for your information. 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