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12-17-2007 - Workshop . ~ 'l Q o CITY COUNCIL OF EDGEWATER WORKSHOP DECEMBER 17, 2007 5:00 P.M. COMMUNITY CENTER MINUTES CALL TO ORDER Mayor Thomas called the Workshop to order at 5:00 p.m. in the Community Center. ROLL CALL Mayor Michael Thomas Councilwoman Debra Rogers Councilwoman Gigi Bennington Councilwoman Harriet Rhodes Councilman Ted Cooper City Manager Jon Williams City Clerk Susan Wadsworth City Attorney Carolyn Ansay Present Present Present Present Present Present Present Present MEETING PURPOSE The purpose of the Workshop was for a presentation by Professional Engineering Consultants (PEC) regarding results of the Stormwater Master Plan with the City Attorney to give a review of Florida Sunshine Laws and the City Charter as it relates to meeting procedures/conduct and City operations. Ken Hooper, Professional Engineering Consultants, made a presentation regarding the results of the Stormwater Master Plan done by Professional Engineering Consultants. (Attached) Greg Teague, Project Manager and Project Engineer, was also available from Professional Engineering Consultants. Mr. Hooper went over the Acknowledgements, some Important Acronyms and Definitions, and the Overview of Drainage Watersheds Encompassing the City. Mr. Hooper commented on doing the work for Restorations by defining their current existing basins and an analysis to Page 1 of 26 Council Workshop December 17, 2007 ~ o o what can be done to correct some of the problems they are going to be talking of. Mayor Thomas asked how they were doing on that. Mr. Hooper informed him t~e work was nearly done. He thought they resubmitted their sufficiency on the DRI and the drainage. Their involvement on that was to determine existing conditions. It is close and he thinks they are wanting to talk more about it very soon. Mr. Hooper then went over the Genesis of the Stormwater Master Plan, Reasons for Updating the Stormwater Master Plan, the Key Components of the Stormwater Master plan Update. Councilwoman Bennington asked if with regard to the funding, this had been paid already. Mr. Hooper informed her yes. For all practical purposes, there may be a few dollars left that is open but he would tell her clearly it is paid. He also commented on the City receiving the grant component from the St. Johns River Water Management District. This meeting is to update Council and hand it over and have Council accept the study and move on with it as they are going to do. Mayor Thomas commented on the Gabordy Canal and 10th Street Canal and noticing there is a lot of debris and vegetation in there and questioning who is responsible for cleaning that canal. He asked Mayor Vandergrifft and he wants the City to do it and the City wants them to do it. He asked if they are talking about cleaning up that canal so the water can flow properly. Mr. Hooper informed him part of what they have described is the maintenance program. They have a maintenance program for canals dedicated to the city. The Gabordy Canal is not one of those. It is actually a County function. It's unique. 10th Street is a City street. The Canal is a County canal and the City and County are going through a widening process. It has a little bit of everybody's fingerprint including the Mosquito Control District, which complicates it even more. Mr. Hooper then went over the Primary Task Assignments Included Within the 2003 Stormwater Master Plan Update. Mr. Hooper then went over the map describing the City's current four basins. He referred to the current FEMA map. Page 2 of 26 Council Workshop December 17, 2007 ~ " o o The gray areas are what had been defined and mapped as Zone A, which is the lOa-year flood elevation. He thought that was put in place in the 1950's and hasn't been updated in response to either development, response to any other criteria. Most of this is based on coastal conditions. The further you get from the coast the less accurate they would find that. He spoke of this being used as the basis to start development approval in yesteryear. From here there would be additional information, drainage study and analysis review by outside engineers. Mr. Hooper commented on this also being the basis for flood insurance. Today, where he lives on Riverside Drive is outside of the area and only cost him a couple hundred dollars to obtain the flood insurance. If you are inside one of the areas and you purchase flood insurance, it is probably two to three thousand dollars. It becomes mandatory when you are in the lOa-year flood elevation. When you are outside it is a discretionary or voluntary program you can sign up for. Flood insurance is based on FEMA's rates. He spoke of insurance companies purchasing the flood insurance from FEMA. He then commented on where some of this can be grandfathered in and that the rationale is that since FEMA is underwriting or selling these policies to local insurance companies, they can guarantee and hold a rate for a period of time. He then commented on FEMA being willing to come down and talk specifically about areas and how they can help them and what to do. Mr. Hooper referred to several maps and commented on the condition that existed prior to the study and what they have updated. He commented on the lOa-year flood elevation after the update. He pointed out the dark gray area, which covers a tremendous amount of the City, being the lOa-year flood elevation. He spoke of the City having a lot of undeveloped property particularly out to the west. Those parcels undeveloped today with the current code only allows area outside the wetlands and the lOa-year flood plain to be considered as buildable property. He then commented on the compensating storage criteria that were updated in the last code and have been worked on in the PUD agreements for the last several years. They are going to see a lot of undeveloped property that people who own that have their eyes set in thinking that is going to be a developable piece of property and many of those areas they are going to find 100% within the flood plain area. That is a key Page 3 of 26 Council Workshop December 17, 2007 .. , o o component for new development in the 100 year that doesn't have existing structures. Councilwoman Rogers stated Mr. Hooper indicated new rules put in the LDC already and these new rules already being incorporated within the PUD's. She asked if it was all the PUD's this far or all the PUD's up to what year. Mr. Hooper thought only the PUD documents starting in 2002 started writing the compensating storage. Those PEC drafted for the City they drafted for several cities, including the County, and they were incorporated in the Land Development Code in the 2006 update. The PUD's because they had a contract with them were able to incorporate them earlier. The Land Development Code when it went through its major changes in 2006 incorporated all those same identical criteria. Councilwoman Rogers commented on the project they are going to be looking at coming up and its not had a PUD agreement. She was referring to the project with the 156 mobile home sites. She asked if that has already been incorporated within this. Mr. Lear informed her they do not have a PUD agreement. Councilwoman Rogers wanted to verify that. Mr. Hoper commented on the area of Florida Shores and there being existing structures and that being a very major change to the way those folks have bought insurance in the past. He then commented on the Capital Improvement Plan primarily for the smaller, storm activity. This will not have any impact on the large area that is mapped. Mr. Hooper then commented on running into water quality permitting issues. Mr. Hooper then presented the recommendations and the next steps the City has to take. Upon completion of this, they are asking the Council to accept the Stormwater Master Plan as being completed, and to continue to enforce recently revised flood plain management criteria, which are included in the LDC. Mr. Hooper explained the complex portions of the existing development with regard to someone wanting to put on an addition and already being below the 100-year flood elevation. The City does not have rules that would tell them clearly how that should be done. They also need rules that if someone has a fire or wind damage and the home has Page 4 of 26 Council Workshop December 17,2007 o o \: to be repaired. Do they bring that finished floor elevation up to meet the lOa-year storm elevation? Logic would tell them they have to but the City's codes would need to be updated to reflect that. Councilman Cooper stated if he were to do an addition on the home, if he had a new survey done and it said he was out of the flood plain he wouldn't have a problem but if he was one of the folks that was considered in the flood plain then new elevations would have .to be put in the Code and they might have to have a step up living room so to speak. Mr. Hooper stated if they added onto a house and they were below the lOa-year, all of the logic and their recommendation is that the City's codes do not allow it to continue. That becomes a problem as far as continuity to what the City has. Mayor Thomas stated they don't have anything that covers that now and Mr. Hooper is suggesting they change the Land Development Code. Councilman Cooper questioned an existing house itself being grandfathered. Mr. Hooper commented on the process with regard to grandfathering provisions. He spoke of FEMA speaking to the Council and staff and also participate in public education and insurance discussions. Educate the 2,000 folks that there is a potential problem and offer them an opportunity to get a survey that would be able to go to their house and you fill out a FEMA form and the surveyor has to do it, he surveys the four corners of the lot and determines if the lot is in the flood plain or out. Then he surveys the four corners of the house pad and determines if the pad itself is up. One more survey is the lowest point adjacent to the pad. Once those are done, they can tell whether the structure is in or out of the flood plain. It goes through a FEMA process, which may entitle you to a discount. Mr. Hooper stated if you have 2,000 people and were to try to survey them all at one time, it is a great cost savings. For less than $100 a piece they could get all of them surveyed. If they are each done individually, it could cost closer to $500 each. He commented on the issue being getting the information out there, let the folks understand the severity of the problem and the grandfathering. If FEMA agrees to it, they come in and tell them the program. While voluntary if you buy the flood insurance, it can be Page 5 of 26 Council Workshop December 17, 2007 o 0 grandfathered at the lower rate. He didn't know for how long. Councilwoman Rhodes stated every home that is built or added on to has to have a survey. She asked how come the existing surveys that people already have couldn't give this information. Mr. Hooper informed her the existing surveys are based strictly on the road in front of the house. Councilwoman Rhodes commented on the road being the starting point and now there needs to be a different starting point. Mr. Hooper explained what needs to happen is in Florida Shores, they need to have benchmarks. He spoke of Honeycutt and Associates coming in and doing 50 benchmarks throughout Florida Shores within the last two or three years. They established elevations within Florida Shores, which means new guys coming in with permits can use those for new permits. Prior to that they had none and everything was relative to that road. They are looking to survey the four corners of a structure to prove even though the lot is in the lOa-year, the house above it. That gets them out of having to purchase flood insurance. Councilwoman Rhodes asked how come they can't subtract the new starting point from the old starting point and that should give them the information they need. Mr. Hooper informed her they aren't accurate. Councilwoman Rhodes asked if the old starting point was not a real number. Mr. Hooper informed her that was right. He further explained they have to get a surveyor to sign and seal that says a house is"at a certain elevation and the lOa-year flood is at a certain elevation and here is the form and you won't have to buy flood insurance. To do that takes a new survey and a valid survey instead of just basing it on whatever the road happened to be and not knowing that number. Councilman Cooper asked the new level that they picked the plain from how much different was it from the old number. He asked Mr. Hooper how much they found in their survey was the difference. Mr. Hooper explained to him that it ' varies. He felt a good answer was 2 or 2 ~ feet was an average of what they saw across the board. It depends on where you are. In the previous, they didn't have a flood plain number. They had a map that had a gray area and there are no elevations on that map. Page 6 of26 Council Workshop December 17,2007 o o . Councilwoman Bennington asked if they were just talking directly about the property and homes in the flood plain area that he has identified. Mr. Hooper stated there are two problem areas, the undeveloped property, which have rules and regulations that will cover them when they come in. Councilwoman Bennington stated what she is hearing is basically they are going to have two sets of codes, one for the flood plain area and one for the people that aren't in the flood plain. Mr. Hooper stated it is one Code. They have flood plain protection criteria in that Code. If they are outside the 100-year in essence, it won't apply. Mr. Hooper strongly emphasized the ability to go out and meet throughout Florida Shores, identify with some mail outs, identify in a 101 session here's your opportunity and have FEMA participate so they can give the citizens assurance that they can be grandfathered in, what conditions they can fill the form out and what conditions they can get as far as financial and is the City willing to help these folks move on. He then commented on funding opportunities such as seeking grant opportunities, some of the Volusia County opportunities that are out there as well as State opportunities to help offset the cost of the surveyor some of cost of the capital improvements. The capital improvements will not change the 100-year flood elevation map. Mr. Hooper further commented on local coordination and what else needs to be done. He commented on portions of New Smyrna Beach and portions of unincorporated Volusia County also being affected. When the next study comes in it will go all the way to Oak Hill. Those folks will also need to be involved. It becomes a coordinated effort. Mr. Hooper then commented on FEMA coming in in 2009 and starting the LOMR timetable process. The City can start it earlier. The County has signed on for that time frame. If the City starts now, they are probably in that time frame. Mr. Hooper commented on this being a lot to digest and this being a very complicated subject. The City has some very good codes. The City has some retrofit issues as well as undeveloped property issues. Page 7 of 26 Council Workshop December 17,2007 o o Councilman Cooper stated he understands since 2006 new codes have been put in place to protect the City about what is happening now in Florida Shores. He was concerned with adding new flood zones in an area that is already developed. He questioned not really having anything they can do with new developed areas to pull some of the water out of the way of the people that are now going to fall in harms way. Mr. Hooper informed him they did not. When they looked at the City's Capital Improvement Element, the number that pops up is about $6 million over a five-year period and the stormwater fees don't generate that. Even if they went in and did a magnitude above at $60 million, they can't put enough pipe and can't permit enough exchange of that water to the Indian River to make a difference in that flood plain elevation. Councilman Cooper asked if that would be FEMA's position as well. Mr. Hooper informed him yes. FEMA's position as well as St. Johns River Water Management District. He spoke of St. Johns looking out for water quality. They leave the flood plain protection to the cities and FEMA. He spoke of some cases where local governments don't follow FEMA procedures, they quit writing entirely. He spoke of there being some cities in Volusia County where you can't get flood insurance because they aren't participating in the program. He again stated that FEMA and the Water Management District would take the same view. They will work with the City. There is a lot of assistance they are willing to do. He felt he could tell them with assurance that at the end of the day, there isn't an amount of money the City has that is going to change that 100 year elevation for that large of an area. Councilman Cooper stated the only concern he would have as a citizen of Florida Shores would be the new developments that are going in. Are they not doing the same thing or are they sure at this time that this new flood plain and the new elevation they are working by with Codes is correcting the problem. Mr. Hooper stated the only way they know it is certain is this level of expertise and this modeling. The City spent about $350,000 to determine that flood plain, that number. They will get FEMA to come in and validate it. They will study it and say they agree with it. At that point they have a fixed number. Everything will be based on that. In year's past, the level of difficulty and modeling just wasn't there. It hasn't been done. The new codes are requiring that and doing the compensating storage and retention. They have a very strict set of standards. Page 8 of 26 Council Workshop December 17, 2007 o o . Councilman Cooper asked if the new codes were such that, hypothetically speaking, he would be turning around and making Florida Shores the bowl. He is going to throw that water because now he has raised the flood plain everywhere else that now he will discharge water indirectly back into the Shores. Mr. Hooper commented on the conveyance system through Florida Shores. He stated one of the positive things is most of the of the new development is going in different directions and not using the conveyance system through existing Edgewater where they have 100-year flood elevation issues. Councilman Cooper asked if the water retention basins under the new Codes would be large enough that they won't be getting the bowl effect as they get closer to the east. Mr. Lear informed him yes. Councilman Cooper wanted to make sure they weren't making another problem. Councilwoman Bennington asked if the 2006 ordinance they passed is what the insurance companies at this point are using. Her neighbor across the street lives behind the 16th Street Canal. She just got her flood insurance rate and it is over $2,500. Her mortgage company told her she had to buy it. She asked what they are basing that on. They told her she was in the new flood plain area. Mr. Hooper explained as new studies are done if they are in an area that has a new study and the new study has been adopted and passed on to St. Johns and made its way to FEMA, they will use the most current, best available data there is. When PEC gives their document to Council, it will become just such a document. If it's not used, the liability starts to shift in the City's direction. It is information they know about and they need to take certain steps to make sure the people are aware and can react the way they are supposed to react to it. Councilwoman Bennington stated she was trying to determine how they determined her house was in the flood plain and across the street they aren't. Mr. Hooper informed her it would be the Flood Insurance Rate map or some recent addition to that. He spoke of additional information being added at times. They will use that information if it is available to them. Councilman Cooper stated it doesn't matter whether it happens or not, once the survey is accepted by FEMA, that Page 9 of 26 Council Workshop December 17, 2007 o o i is when here comes the flood insurance. This is a tool to protect you but indirectly on the citizens' end of it, once the plan is adopted and FEMA adopts it, the insurance companies are going to accept it as well. That will set the new rates. He asked Mr. Hooper if there was anything he knew of where FEMA has offered some relief to the citizens for this newly added increased insurance that will go through the roof. Mr. Hooper stated FEMA has offered opportunities that if you buy the discretionary/voluntary before it is mapped, before this becomes official, they allow you to be grandfathered. He wasn't sure how long they would be grandfathered for. He felt FEMA was struggling with some of the rule changes that are also occurring. They have identified you can be grandfathered for a fairly long period of time and if you get the certificates done that show you are out of the flood plain you get a deep discount even if your lot is in the flood plain. It is a combination of all of those. If you can prove your structure or house is out of the flood plain, big discount. If you buy it up front before it is required and then you become in an area that says you need it, still a huge discount if you purchase it before then. Councilman Cooper asked about people purchasing the insurance now and being grandfathered in. Mr. Hooper explained they are asking the Council to accept the Stormwater Master Plan, not adopt it. Accept that the work is done and start the map revision. Start by meeting with FEMA and hold the public information meeting. Let them have an opportunity. Councilman Cooper asked how much time do the citizens have to exercise their financial right to look at an avenue to grab this flood insurance while they can at a lower rate. Mr. Hooper explained it would be measured in months, if not years. It takes a long time to go through the map revision. If they started it in 2008, they won't be in front of 2009, which will automatically occur. Councilman Cooper stated so in 2009 when FEMA does their updated survey, that would be almost their drop dead time. They have about 12 months to get on the stick. Councilman Cooper stated he bought a home that was raised up 15 or 20 feet so he knows he will be out of it so it would behoove him to get his additional survey done and be sitting on that because his flood insurance would be the same as if he was never in the zone. Mr. Hooper explained Page 100[26 Council Workshop December 17, 2007 o o it is important that if you are in the zone and you know your house is up, they need one of those to prove that. Councilman Cooper confirmed all of that would need to transpire within the next year. Mr. Hooper informed him that was correct. Councilwoman Bennington asked about liability. If they accept this plan and allow a development to go in in an area that they know is in this flood plain, what is their liability? Mr. Hooper explained they aren't doing that. Since they adopted the plan, the Land Development Code, if someone is in the lOO-year flood elevation, they can fill and have to do the compensating storage. Staff has taken this plan and is using it. City Attorney Ansay explained one of the first things they did when they were provided the first draft of the information from PEC was she had a conversation with Jon and Darren and they said in an abundance of caution, it would better to be more conservative than take any risks from the City's perspective. Mayor Thomas thanked Mr. Hooper for his presentation. City Manager Williams stated if there are no objections to following PEC's recommendation, he and staff will move forward in scheduling additional meetings and provide the educational sessions as they have outlined for us. Councilman Cooper would like to see City Manager Williams go a little bit further. Obviously they are going to adopt what PEC has just presented because FEMA will adopt it anyway. They need to get as much communication out to the public as fast as possible. He would like to see something in the Edgewater Shorelines as soon as possible and let them know what is discussed here so it can't come back on them because they haven't let them know. City Manager Williams stated they would look at running some advertisement in the local newspaper as well as individual mailings. Mayor Thomas called a five-minute recess at this time. Page 11 of26 Council Workshop December 17, 2007 o o City Attorney Ansay stated she has been asked to present some information on a whole variety of topics. She has tried to organize the best she can the material into thirds. She would like to start off with a brief summary and overview and talk about the Sunshine Law and Public Records Law. She would also like to talk of the voting conflicts and ethical laws. The third section she would like to go over are the meeting procedures they had in the resolution that was in the agenda packet as well as there was a copy of the charter. She thought she would just breeze through. She highlighted some items of interest. City Attorney Ansay started off her presentation by going over the Sunshine Law. The Sunshine Law is important in the State of Florida and Local and State governments. The Sunshine Law provides that any gathering of two or more members of Council, as well as advisory groups, to discuss any matter that might reasonably come back before them for action needs to be conducted in accordance with the Sunshine Law. There is a lot of misunderstanding as to what compliance with the Sunshine Law means. Meetings have to be open to the public, which they do. They have to give reasonable notice of meetings. The City gives reasonable notice of meetings at least a week in advance. There are provisions in the law for calling emergency meetings if needed. The Sunshine Law provides that minutes of the meetings must be taken. She feels it is important to think about where people get caught with Sunshine Law violations. She commented on e-mails constituting a meeting between Councilmembers. They can't communicate back and forth by telephone, through her or through City Clerk Wadsworth or City Manager Williams. If they are trying to get messages to one another on any kind of subject that comes back before them or is reasonably likely to come back before them for action, that is required to be held in the Community Center where everyone can hear what they are saying. Mayor Thomas used speaking to Councilman Cooper about how many deer he killed as an example of something he would be able to talk to him about. He then spoke of not being able to use conduits and that being a violation of the Sunshine law. City Attorney Ansay confirmed that was correct. She usually counsels people as you are human beings and have to interact and deal with each other but the reality is unfortunately sometimes it is probably better not to call and congratulate him on the deer he killed just because you Page 12 of26 Council Workshop December 17, 2007 o o don't want it to be construed as something it's not. Part of the downside to this job is that some folks believe it casts a wider net than it really does. They see you talking in the grocery store and they assume you are talking about something that is improper. Her advice to her clients is ignore each other to the best of your ability so that it never can be construed as anything improper. Those are the rules they have to live by. City Attorney Ansay then commented on communication and times when they get up at the end of meetings and talk. The law does require that any of their conversations take place in the public and they don't want anyone to misconstrue anything. Councilwoman Bennington asked about a Councilmember talking to a board member from another board about something that mayor may not come before both boards. She asked if that is a Sunshine Law violation. City Attorney Ansay informed her it is communication between two or more members of the same board. Bennington asked if Councilmembers could attend Board meetings as a member of the public to see how the boards are conducting their business without a violation as long as they don't participate. City Attorney Ansay stated they could all sit out in a board meeting but she doesn't recommend it. There is nothing wrong with them going and listening. She feels if they start to participate or comment in any way it starts to get more difficult. She would caution them. Councilwoman Rhodes asked if it is okay if there is one Councilmember at a Board meeting then they can participate. City Attorney Ansay stated it is all about two or more. Councilwoman Rhodes stated since she has served on Council she has always been advised by legal to stay away. It is better and makes things cleaner. City Attorney Ansay commented on having issues during the elections when they have candidate forums. She also mentioned going away parties. Whenever they are all invited and are in one arena it presents possibility for problems. Councilwoman Bennington stated when they go to conventions, that opens it up to. She commented on all the elected Page 13 of26 Council Workshop December 17, 2007 o o officials that attend the Florida League of Cities conference. City Attorney Ansay informed her they can't talk about things that are reasonably likely to come back before them. Councilwoman Bennington asked about whether or not Executive Sessions ave to be recorded. City Attorney Ansay informed her the Sunshine Law does not require that any meetings are recorded. Bennington stated she meant minutes. City Attorney Ansay informed her with regard to Executive Sessions, the law is very specific in that regard. If it is related to litigation they are required to have a court reporter present who takes down a very detailed transcript. That transcript remains sealed until the litigation has concluded and that that point it becomes a public record for which the City Clerk can open it up to the public for view. Councilwoman Bennington asked about union negotiations. City Attorney Ansay stated in the context of the labor negotiations, she didn't believe the Statute provides that they have to have a transcript. She agreed to check this. She knew David Young normally covers those meetings. She wasn't sure there was the same requirement they have with the litigation strategy meetings and litigation expenditures. Councilwoman Rhodes stated there is nobody there taking minutes when they do that. City Attorney Ansay stated she would have to assume that the law does not require it and that he has made that decision that he isn't going to do that. Councilman Cooper stated some of the things are recommending they have minutes taken at these meetings. If they take minutes, they are subject to the Sunshine Law. Although they are recommending the minutes be taken, the hidden phrase is don't take the minutes. City Attorney Ansay stated once you take them then they become a public record and are subject to public records law. City Attorney Ansay stated in some ways the Sunshine Law is very clear but in other ways there are a lot of traps. She stated often times a Councilperson will write an e-mail to the Manager or someone, that is their position or thought on a subject matter. She spoke of a situation where a Councilperson would write her position papers on issues and Page 14 of26 Council Workshop December 17,2007 o o ask that the Manager would circulate them to the rest of the Council. That is not a violation of the Sunshine law. If they want to articulate her position on X is this for a reason and it's a position paper and it's thought out and reasoned. It can be done. It becomes a public record and it gets shared with the public. She discourages it because it is hard to distribute something like and not elicit a response. Councilwoman Rhodes stated if one person could put out a position paper why can't every person put out a position paper. City Attorney Ansay stated that is where it gets very sticky. When everybody starts putting out position papers, as soon as one position paper can be deemed to be a reaction or response to a previous position paper, the Sunshine Law has been violated. She didn't recommend doing this because it does often times cause problems. Councilman Cooper stated he just did one because he was talking with Mr. Parker and he said that is the way he did it. He didn't take a position on anything but he is soliciting action and points of interest. Councilwoman Rhodes stated and she wanted to respond to it. City Attorney Ansay stated and she had to restrain herself. It is a great way to communicate and for elected officials to get their thoughts down and get them out but it does cause that response and folks wanting to respond and not being able to until they come to the Council meetings. Distributing a position paper as long as there is no response before the meeting is okay but it does solicit that reaction. She informed Councilman Cooper nothing he did was improper. Councilman Cooper stated he wanted to move forward and doesn't want to wait six months. He wanted to move forward immediately and get some of the issues out quicker. He realized everybody is restricted by time frames and they have a lot of different things going on and he is trying to be understanding of that. He didn't want to let the citizens down and not have anything look like anything was being suggested. Councilwoman Rhodes stated he could ask that those be agenda items. Councilman Cooper stated he did. Councilwoman Rhodes stated and they weren't put on the agenda. Councilman Cooper informed her no but that it was okay. He stated as long as he doesn't take a position he Page 15 of26 Council Workshop December 17, 2007 o o can bring avenues forward and communicate with the public and fellow Councilmembers. Councilman Cooper stated citizens, employees, not necessarily a director, you will be at a function and they want to voice an opinion and they are soliciting the Councilmembers opinion, he tries to stay as far away from that as he can because it seems like the wrong thing to be doing as far as an ethics situation because you aren't privy to all the facts. They've got rumors everywhere and it tends to work by the rumor mill. He gets calls all the time about rumors and people wanting to know his response. He asked how they would deal with that. City Attorney Ansay stated having conversations with staff and the public can be fine as long as that conversation isn't a means by which they are serving as a conduit between Councilmembers. If staff or the public serves as a conduit, they are breaking the law and can be charged by Tanner for violating the Sunshine Law. Councilwoman Rhodes stated so they can talk to anybody about anything except the other Councilmembers. City Attorney Ansay stated the Sunshine Law does not apply to staff or to your neighbor unless they are serving as a conduit and trying to pass messages between two Councilmembers. If it something they know is reasonably within their realm of business, don't talk about it. Councilman Cooper commented on wanting to be open to the public and having to be open to the City employees as well. Whatever the issue may be there is a degree of importance to every issue. They look at this and can construe this as it doesn't want you to be open to the public which turns the public against you and that isn't really your intention. As long as it stays away from the Council, they can talk with the public and take the feedback. It is another venue for information. City Attorney Ansay stated as long as they aren't telling them they talked to another Councilmember and this is what they told them. That is when they tell them they don't want to know what another Councilmember said. That is improper. Councilman Cooper stated he is under the understanding the Council can talk with a director as long as they are looking for information. If a director comes forward and calls you or writes you a letter or e-mails you and wants to know your feelings, and you know if this isn't a rumor Page 16 of26 Council Workshop December 17, 2007 o o it is going to come before Council sooner or later. He asked about issues like that. City Attorney Ansay stated that is less of a Sunshine Law issue and more of a Charter issue. She didn't think, unless they are serving as a conduit between two Councilmembers, that is not a Sunshine Law issue. That is a Charter issue. She agreed, when they get to that section, to run through some of the Charter issues. Councilman Cooper stated so a Councilperson's information. the Sunshine Law only governs more Councilmembers. director could solicit a City Attorney Ansay stated communications between two or Councilman Cooper stated the ethics of that, he has a problem with those ethics. He doesn't believe that is right. He doesn't think they should be asking that of him or of anybody on Council until they have had a chance collectively to put five minds to it to take a hard look at something. He feels uncomfortable with that. He would like to see that stop. If he has a director or important employee that has an issue that is very strong and they are right for it to be a strong issue. City Attorney Ansay stated that is a Charter issue. Mayor Thomas stated they can talk as long as they are talking about something they aren't going to vote on. City Attorney Ansay stated they can talk as long as they aren't talking about something reasonably likely to come back before Council for action but she doesn't recommend it because she knows how politics work and she doesn't want to see any of the Council ever having a conversation in the grocery store about the football game last night and have a citizen that doesn't like them. Mayor Thomas asked if they have to have some type of proof and they knowingly have to be violating the law. City Attorney Ansay stated in the end, they will be fine and won't get convicted but it will be after somebody sends a complaint to the State Attorney's Office. After the State Attorney's Office investigates it and assigns an investigator to it. After they make a probable cause determination that there is no probable cause. After the newspaper article has appeared on the front page as a report of a violation of a Sunshine Law and after she has to spend thousands of dollars defending against it for them, then they are cleared. That is why at the end of the Page 17 of26 Council Workshop December 17,2007 o o day, its one of those things she recommends they don't do it because it makes their lives easier in the long run. She urged them to avoid a lot of it so they don't get themselves in that position. Councilwoman Bennington commented on herself as well as Councilman Cooper and Councilwoman Rhodes judging the Christmas parade. Everyone knew they were there so to be accused of violating the Sunshine in that kind of setting is sort of ridiculous, although it could have happened because the three of them were walking around together judging the floats. Councilman Cooper agreed with staying away from public perception. He asked what to do if for example, Councilwoman Bennington were to contact him to find out if he was attending the parade. City Attorney Ansay informed him he would be fine and that he didn't have to hang up on her. It's perception. It's not pleasant. She doesn't want to see any of them go through it. She tends to be more cautious due to having gone through this with other folks before. Councilman Cooper stated it makes him uncomfortable when he is saying he can't talk to anyone about anything yet he is looking for avenues to bring forth his entire platform. Councilwoman Rhodes stated they have to talk to your constituents. That is why they are here. Councilwoman Rogers stated what if you aren't aware of a conduit and later somebody alleges something. She referred to reasonably likely to come before you. You just don't know. She presented some examples. It's very hard to have that crystal ball. City Attorney Ansay stated that is all support for why she says just avoid it. She commented on how the State Attorney would handle Councilwoman Rogers' examples that she presented. City Attorney Ansay stated how do you know if it is reasonably likely. You don't. Sometimes it is a very difficult, blurry line. How do you know if somebody is a conduit, you don't necessarily because sometimes people don't state their intentions. She urged the Council to be careful. In the final analysis if you have the Page 18 of26 Council Workshop December 17, 2007 o o communication with someone and it turns out to be a problem, you just have to be very careful. They know there are certain people who call Councilpeople regularly. If they know they aren't disclosing that they are a conduit but they likely are, don't talk to them. If it is a legitimate communication you have with a member of the public, they aren't going to have a problem. Councilwoman Rogers stated back when they were dealing with the condos, she would get calls and they would already do one vote and getting ready to do another vote. It just got to be so old to go into the conversation and to give support or explanation as to why she voted a certain way. People would then ask what if this was presented, how would she vote? She would respond by telling them to go back to the minutes of that meeting and read them. They would get an idea of how she felt. She wasn't going to say how she was going to vote going into a meeting because she doesn't know 100%. A citizen may come to the meeting and say something to change her mind. City Attorney Ansay explained that is a different issue from the Sunshine Law. Councilwoman Rogers stated there is a select group of citizens that come to the meetings all the time and they are always concerned. She is concerned with those types of things. City Attorney Ansay briefly commented on the Public Records Law. She felt the materials that were given to Council were pretty self-explanatory. She didn't think this was anything for the Council to worry about because the City Clerk handles most of that and she is doing a fine job with it. Unless they had questions, they could skip over that. That is all well under control. They have a process. The City Clerk maintains the records for the City. The few times she's been questioned about public record requests, they have been handled great. The City Clerk has a great form the public fills out if they want documents. She knows of no issues. City Attorney Ansay then went on to speak about Voting Conflicts and Ethics Laws. This is an issue that comes up every now and then. The law provides as elected officials that the Council cannot take a public position and vote on a matter, which is going to inure to their special private Page 190[26 Council Workshop December 17, 2007 o o gain or loss. If they are going to profit from it or if family members or business associates or entities which they are a part of are going to profit from a decision the Council will make, they have a problem. It's any kind of impact they would have financially. If something like that conflict comes up, they have to not vote. They have to publicly announce what their interests are and City Clerk has a form that has to be filed with her within 15 days of the vote. It doesn't happen that often. She commented on an issue they had recently with former Councilman Vincenzi who has a son that is a police officer. He was concerned about what he could and could not vote on. A lot of the votes, when you have employees that are relatives, that is one of the areas where that comes in to play. There were a few opinions on point but they wrote a letter to the Ethics Commission. There are ways in which they can ask for official advice on that from the Ethics Commission if things come in to play that might be a problem for any of the Council. If it feels funny when you think about it there might be a problem. She encouraged the Council to speak to her and they can talk about and evaluate it from there. City Attorney Ansay then commented on the meeting and operational procedures. There is a resolution that exists that governs the meetings of the City. We have a very detailed and pretty good resolution that talks about the conduct of meetings. It says the presiding officer of a meeting is the Mayor and it is the Mayor's job to preserve order and of quorum at meetings and basically communications at the meetings from her or from staff or from the members of the public, should be directed to the Mayor. She spoke of not responding because of our rules and proper decorum protocol, and not speaking unless the Mayor asks her to speak. Unless the Chair or the presiding officer or the Mayor directs her to speak, she really doesn't speak and shouldn't speak. She feels it is important for the public to realize that as well. She feels Edgewater's meetings are some of the best run meetings she has attended and she felt people are very professional both in the public most of the time as well as the elected officials. The Mayor has the power that they have in the resolution to control the meeting. City Attorney Ansay stated the resolution points out when questions are under debate and discussion, they are to avoid personalities, improper comments, poor language and Page 20 of 26 Council Workshop December 17, 2007 o o those types of things. They usually have an officer here that is at the ready of making sure if folks get emotional or if things look like they are going to get out of hand, they get taken care of. She then commented on the language about a Councilmember moving the adoption of an ordinance or resolution will have the privilege of closing debate. That has never really been an issue here. Sometimes if a debate goes on for a long time and somebody needs to call the question, they have that in the resolution. The other good thing they have in the resolution it talks a little bit about everything being directed towards the presiding officer but also states that no other person other than the member of Council and the person that has the floor shall have the ability to speak. She feels they do a pretty good job of that. It is good to have it in there in case they ever run into that problem. City Attorney Ansay commented on the reference to Roberts Rules of Order. They have pretty detailed procedures in the resolution. They also have a statement at the end that says in the event that it is not otherwise governed in the resolution, then Roberts Rules of Order take place. A lot of it is governed by that resolution and probably better governed by the resolution. Roberts Rules of Order can tend to be very strict and very formal and can tend to suppress the free flow of ideas between Council but also with the public. She feels they are necessary when things get out of control. The first go to point is the resolution. If it is not addressed in the resolution, then Roberts Rules of Order would kick in and govern. She hasn't seen that there have been many problems in terms of meeting procedures. City Attorney Ansay commented on the Charter. One of the things she was asked to address was meeting and operational procedures. There is a lot in the Charter. The Charter being the supreme document of the City is probably the first place they should have started. She went through and highlighted sections she felt were interesting and very pertinent to Council. She commented on Section 3.08 - Prohibitions. She spoke about how some other cities have a strong Mayor form of government. Councilman Cooper stated certain individuals don/t want them to talk to some of the Councilpeople. He doesn/t feel this is fair or the right thing to do. The way he read this that isn/t what anybody is saying. He commented on Page 21 of26 Council Workshop December 17,2007 o o issues where they know people are venting or they are upset about an issue and they believe their points are landing on deaf ears. He feels they should come forward and that is the right thing to do. How they deal with it as a Councilmember comes to their own ethics. If something bugged him that bad, he would speak to the City Manager right away. He didn't think they were construing to tell the people public or employees that they can't call their councilperson. City Attorney Ansay commented on 3.08(c) - Interference with Administration. Their job isn't to wear blinders. It is basically the intent of the Charter that the recommendations for improvements in the operations go to the City Manager. City Manager Williams stated it has been his experience that in many cases because of decisions that are made it is circumvented all the way around and comes directly to Council and have no understanding of the issues before it gets to Council so he ends up responding back after an employee or department head has come to Council. In many cases they have had situations where employees have circumvented their own directors, personnel even, in trying to get issues resolved and come directly to the City Council. He has had individual conversations with each Councilmember in pleading for their assistance in helping maintain that integrity to try to correct the issue. Councilman Cooper stated it seems to be a problem that is going to continue under this present format. He suggested solving the problem relatively easily by hosting a workshop with the City ManagerjCounciljDirectorsjAssistant Directors or even Union heads where they get that communication in an open forum and they get to talk and they get to bring it up. He spoke of not being privy to everything that has happened over the last three years due to being new on the Council. His caution is always wait until he finds out more information. To have better communications, he thinks if they started hosting a workshop meeting on a regular basis they can get a better give and take with the directors, the people in the audience as well as some really influential employees. If he were in City Manager Williams' shoes and they circumvented the chain of command it really makes him mad because you can't manage that way. On the same token, the document does say solicit the information, bring information forward so on and so forth. Page 22 of 26 Council Workshop December 17, 2007 o o The employee has got to feel uncomfortable or the director has got to feel uncomfortable if they feel they aren't getting anywhere with Jon and want to bring it to a Councilmember or Mayor. In an open forum where they have that scheduled meeting he believes they have a better opportunity to bring their issues to light where it can be talked about. With enough minds put on it you can usually come up with a consensus to fix the problem. That is where he sees the problem. He feels they have a huge communication gap. He would like to see that type of meeting with those individuals. He believes their voice is important to the Council and the City and they need to hear more of it. If they can't talk amongst themselves, the only place they are going to get that information is collectively come to the meeting and bring it to him. He would like to see that incorporated. City Manager Williams asked if that is something they would like to do monthly. Councilman Cooper believes it is something has to be done. He suggested monthly or twice a month. Until they can fix some of the morale problems and understand the overall workings and what each person's ideas are, maybe they need more in the beginning and taper them off as they get rid of some of the animosity that exists. He feels they can't ignore it and keep operating under the present conditions because it is obviously not working. He would like to see the communication have more give and take with the people they have entrusted to run the City. Councilwoman Bennington referred to Appointments and Removals. She understands they operate under the City Manager form of government. It says but the City Council may express its views and fully and freely express with the City Manager anything pertaining to appointment and removal of such officers and employees. She asked if that meant individually or as a whole when it is referring to City Council. City Attorney Ansay felt it probably meant both. She thinks the Council can meet and should be meeting individually with the City Manager on issues like that. She felt it could be done either way. Councilman Cooper felt that could be dealt with in the workshop meeting too. Councilwoman Bennington stated if they have an issue about something they can take it individually to the City Manager Page 23 of 26 Council Workshop December 17, 2007 o o or bring it to the Council and they as a whole can address it. City Attorney Ansay explained this section says they can't dictate. Dictating is forcing your City Manager to do something and if they fail to do it have some sort of consequence. They can express their views that they think a particular department head would be a great choice or a horrible choice. What it is saying is they can express their views to him. Expressing their views is different than dictating. City Manager Williams stated what he often finds in some of his individual conversations, is he hears things brought to him in the form of hearing someone is doing something and wanting more information or where they are getting their information from and they take a hands off approach. That is where the challenges start to develop for him to do a proper inquiry into to some of the accusations, that are coming forward. It makes his job much easier if he knows exactly the source and what is going on so he can do the proper research. Often they find out in these situations they are only getting a small portion of the information. He spoke of responding to a lot of rumors and a lot of non- factual information and a lot of innuendos. He spoke of the time he spends managing the past and rumors. Councilman Cooper stated as this says a Councilmember or Council collectively cannot dictate hiring, firing or maneuvering of individual's positions. He is also reading that as if that pertains to the City Manager as well. He asked if the was reading that wrong. City Attorney Ansay stated the provision only applies to the Council. Councilman Cooper stated in all the years he has been in upper management the worse thing he has ever had to do is fire people. That has got to be the hardest thing for City Manager Williams to do as well. Is it improper for Council and the City Manager, in an instance where an employee believes and he used the City Manager as an example, the City Manager is going to take repercussions because he or she brought something forward to the Councilor made a statement at one of their meetings. He didn't feel this was right. He doesn't believe anyone should exercise their authority over an individual even if they are completely wrong on their facts, the opportunity to state their opinion and bring their concern forward. He feels if they don't address those concerns even if they think they are a fallacy, you are a bad manager and shouldn't be in that Page 24 of 26 Council Workshop December 17, 2007 o o job. Underneath that complaint is probably something that is very near and dear to many other people. He asked what the proper avenue would be when they are into those situations, would it help to have additional advisory staff or advisory board or committee if he feels he has to take a disciplinary action. City Manager Williams stated that is why they have a Personnel Director and Personnel policies and procedures in place. Councilman Cooper asked City Manager Williams if he felt it goes far enough. City Manager Williams stated he certainly does. They hear a lot of threat of repercussions and that has never been something with him that has been dealt with. He felt the issue that comes forward in the context that City Attorney Ansay used as far as the appearance of violation of Sunshine Law. When someone makes the accusations it is blown allover the headlines but nobody ever comes back and says you have been fully exonerated. He spoke of there being a process by which you gather the facts before you come forward and present that information. If they can come forward and present factual information, there is no issue. When you come forward and present non-factual information and haven't done any of the research to prove those facts, he felt there was an issue that develops there. In no case has there ever been any repercussions as long as he has been City Manager. Councilman Cooper stated that isn't the perception out there. Councilwoman Bennington agreed. Councilman Cooper stated whether it is right or wrong, if that is the perception it is just like the meeting he requested. They have to get rid of that perception. He asked City Manager Williams if he believed he could use an additional tool to take that onus off his back so that perception doesn't stay out there. He knows they have a Personnel Director and he knows City Manager Williams doesn't like anybody usurping his authority because he wouldn't either, but in the same token he thinks Council can be a helping hand in those kind of situations so perception doesn't continue because it is continuing today. City Manager Williams felt they could explore opportunities. He spoke of there being certain grievance procedures that are articulated to reflect the bargaining agreements. He felt it was a pretty delicate issue that requires a whole lot of additional inquiry. He is open to any ideas. Page 25 of 26 Council Workshop December 17, 2007 o o Councilman Cooper stated he believed in their meeting they spoke about if they bring it to fruition that would be an excellent item on the agenda all the time for that meeting so everybody gets a fair shake no matter whom that employee is. He feels everybody deserves a fair shake. He feels City Manager Williams could get rid of some of that perception if he asked for a little help from the Council. He felt they were willing to give it. Mayor Thomas commented on receiving a lot of complaints and information from the field. Being a cop for 30 years, his first thing is where are the facts. City Attorney Ansay urged the Council to go through the information included in their packet. ADJOURNMENT There being no further business to discuss, the workshop adjourned at 7:05 p.m. Minutes submitted by: Lisa Bloomer Page 26 of 26 Council Workshop December 17, 2007 <: ~ . . . .. . ., .~ ~ r :ll ~ "11'11 J '0 d't ~ ilr, = \' I' c ~ ! 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