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02-09-1998 - Special ..... ....., CITY COUNCIL OF EDGEWATER SPECIAL MEETING FEBRUARY 9, 1998 3:00 P.M. COMMUNITY CENTER MINUTES CALL TO ORDER Mayor Allman called the Special Meeting to order at 3:00 p.m. in the Community Center. ROLL CALL Mayor Randy Allman Councilman James Gornto Councilman Myron Hammond Councilman Gary Roberts Councilwoman Judith Lichter Interim City Attorney Nikki Clayton City Manager Kevin Grace City Clerk Susan Wadsworth Police Chief Lawrence Schumaker Present Present Arrived at 3:03 Present Present Present Present Present Present p.m. Interviews of City Attorney/legal services applicants The following firms were interviewed by the city Council: Coble, Woods, Webster, Bush, Clayton & Teal (Daniel J. Webster) Foley & Lardner (Martha Formella) Fowler, Barice, Feeney & o'Quinn (Carole Joy BaricejMary L. Sneed) Stenstrom, McIntosh, Colbert, whigham & Simmons (Donna McIntosh) Michael W. Youkon Councilwoman Lichter spoke about this individual being different because the other four were firms. She didn't think they got to the point of talking about an individual practitioner, either part time or full time. They were going to make that decision and advertise for a set up so it would be fair. She wondered about the legality of this. Interim city Attorney Clayton informed councilwoman Lichter there were two responses from sole practitioners, one of whom has withdrawn. The advertisement was for a firm. Mr. Youkon is a firm. There are a whole host of attorneys who are government lawyers who are working for agencies that do not hold themselves out as law firms because they are full time employed by an employer. Mr. Youkon is a practitioner with a variety of clients and he is offering his services on a part time basis which could add up to a full time basis depending on how much legal business is given to an attorney. Councilwoman Lichter stated they also didn't appear to advertise for part time attorneys for municipalities. Mayor Allman stated his understanding is the firms they have talked with would be part time. City Manager Grace stated he thinks the distinction he sees differently in Mr. Youkon and the others, are things like the city providing him benefits which treat him more as a part time employee as opposed to a contract attorney. Councilman Roberts feels if they are going to consider an individual over a firm, should they advertise for individuals and see who responds as consideration for in-house full time legal counsel. ..... ...." Interim City Attorney Clayton spoke about a memo from Mr. Hooper regarding the benefits and the comparisons between full time in- house and outsourcing the legal services. She went on to speak about Ms. McIntosh talking to the Council about what outside firms did and that was a way of getting an idea of what was different between that and in-house. At that time the Council wanted to advertise for outside firms. Interim city Attorney Clayton informed Council they could turn the characterization of these benefits around and just quantify them in terms of money and still retain the arm's length relationship with the professional. Councilwoman Lichter stated they came to a bottom line that they would decide amongst themselves if they should go forward and look into in-house. City Manager Grace suggested finishing with Mr. Youkon and discuss that issue later. That is a key issue before they move forward. Councilman Roberts stated Mr. Youkon has a totally different approach then the four firms. If we go in-house it is a totally different aspect. Interim City Attorney Clayton asked Mr. Youkon if the City could quantify what the cost of the benefits are and include that as a part of the professional fee and he takes care of them the way he wishes and then that makes him an independent contractor. Mr. Youkon doesn't think those costs are very high. Interim city Attorney Clayton asked if Mr. Youkon would be amenable to consider applying if they were to choose full time in-house. Mr. Youkon stated the numbers would change but that would be a possibility. He doesn't think this City really wants or needs full time in-house. Mr. Youkon feels the City is going in the right direction and he would like to be a part of it. Interim city Attorney Clayton informed Council of the schedule. Mayor Allman asked city Manager Grace if he had anything to discuss between 5:20 and 5:30. City Manager Grace stated only if Council wants to discuss the key question regarding the attorney. Does Council feel comfortable going with an outside firm or would they want to reconsider the issue and look at an in-house counsel. city Manager Grace stated if Council decides they want to go with an outside firm they could proceed to rank and select. City Manager Grace expressed concern with access and availability of counsel on a day-to-day basis. He was very neutral going into this but if he had to make a recommendation he would lean more toward an in-house legal counsel. Primarily based on the fact of cost and availability, he thinks if they contract out they will use an attorney at least twenty hours a week. At a hundred dollars an hour, you're looking at over $100,000 a year. Mayor Allman feels $100,000 a year is very well within the realm of what they need to pay an attorney. The in-house attorney cost over the past two years was over $500,000. City Manager Grace feels on the in-house side if they hire someone with a total salary and benefit package, you work that out on a per hour basis. You have a full time attorney that works out to about $46 per hour including benefits. Page -2- Council Special Meeting February 9, 1998 '-" ...., Mayor Allman stated you have to make sure they are going to be able to do certain things. City Manager Grace feels with a contract attorney or an in-house attorney, there are certain specialty legal services the city will have to get separate from the contract or in-house counsel. He feels weighing the access and availability versus the cost, the Council will get more attorney and more availability for the money with an in-house than you would with a contract. Councilman Roberts feels they have very good legal counsel at their disposal. He doesn't think they should be in a rush as long as Interim City Attorney Clayton is willing to stick it out with the Council. It will give them time to consider whether they want to go in-house or with a firm. If the rest of the Council wanted to entertain the idea of advertising for individuals and interview a number of people, they could decide if they want to go with a firm or in-house after that. Mayor Allman feels prior to that they should decide if they want to go individual or in-house. Councilman Gornto agreed. He thought the Council did not want in-house and they were going outside because they were going to save money. Councilman Roberts feels Mr. Youkon's proposal was a surprise compared to what they expected and what was received from the other firms. Councilwoman Lichter doesn't feel they necessarily will save money. She is open to listening to someone that might be considered in-house. She feels they need an objective, diversified, non-partisan approach to the attorney. Councilwoman Lichter feels the open mind approach that Councilman Roberts has proposed probably is best and that maybe they should see what is out there. She feels it is not just firm versus in- house but personalities too of how the rapport is with an attorney. Mayor Allman feels they should advertise for individuals and see what is out there and after they are interviewed, they call a workshop and discuss the pros and cons and decide which way they are going to go. He is inclined to go with Councilman Gornto. He thought they decided they were going to go with outside legal counsel to save money. Interim city Attorney Clayton stated she does recall Councilwoman Lichter having said that she did want to reserve the opportunity to talk about the comparison. Mayor Allman suggested advertising for proposals for an in-house attorney. Councilman Roberts questioned which category Mr. Youkon would fall into. He questioned if they should short list the four firms they have already heard from. He was impressed with two of the four firms. Interim city Attorney Clayton stated you don't rule out any of the choices because if there were any relationships the Council establishes that is really at will, it is the relationship with the legal counsel. She informed Council they have the ability to retain what they have heard today and compare it with what will be heard if the other advertisements are done. Councilwoman Lichter spoke about the potential conflicts a firm could have such as a firm representing the city and another client at the same time. Interim City Attorney Clayton stated it doesn't matter how you try and avoid it, it will come up. Page -3- council special Meeting February 9, 1998 ~ ~ Councilman Hammond spoke about being on the Council the past four months being a learning experience. He informed Interim City Attorney Clayton she has helped him through a lot of transition. He would like to consider Interim City Attorney Clayton being the City Attorney. Interim city Attorney Clayton stated she appreciates the kind words. As far as the next step, it appears to her that at the moment if they choose to advertise for in- house opportunities that they will continue to need services in the interim and so in response to various questions from various members of the Council and Mr. Grace, she has responded that her engagement with the city is on an indefinite basis and it is at their pleasure while they need the services of an interim attorney she will be available. She informed Councilman Hammond she doesn't have an answer for his question. In terms of an interim, she is available until Council makes the decision on the advertisement for an in-house full time and they will need services for that period of time. The city is in the middle of two matters that she feels important to continue the representation through their conclusion or at least to a point in time. The Council will remember she said she was here on an interim basis to help in a transition very much like she had done in 1990 and no one really has asked her to think otherwise. Councilman Roberts again stated the City has good legal counsel while they are considering individuals or firms. Time is on our side. He spoke about as long as she is here until those two cases are concluded, she is at the city's disposal anyway. Councilman Roberts doesn't feel they should rush into anything today. Mayor Allman suggested advertising for the individuals with a cut off date so these people can be interviewed because they can't expect the firms to wait around for an answer. After the interviews, they will sit down and figure out whether they are going to go with in-house legal counselor outside. Then they will make a list of the firms or individuals at that time depending on which way they decide to go. Councilman Gornto stated they aren't talking at this point about personalities. It is filling a slot or a need of the city. One of the major issues that came out of the campaign and resulted in a person leaving employment of the City was this tremendous legal expense that the City was incurring with that mode of representation. It seems to him there was a long discussion where they talked about that in order to cut the expense of that function, the best way to do it and still get conpetent legal advice was either a part time attorney or a firm. He doesn't understand what they are solving by advertising and going through more interviews. He feels they first need to decide which one they want to seek and he doesn't see that personalities have any bearing on it. He doesn't see interviewing fifty more people and then deciding none of those personalities really hit me because they are going to all look capable with regard to their credentials. Councilwoman Lichter stated it apparently isn't a new scenario. NoraJane Gillespie gave her copies of tapes to listen to with this very subject of what type of attorney. Back then they had trouble making that decision and they interviewed both ways. She is not convinced it is cheaper and more economical in the long run and she thought they left it open. She feels price is a factor but sometimes what you need becomes more of a factor than price. She feels personality is a factor. She stated when they hired Mr. Grace, personality entered into that. Page -4- Council Special Meeting February 9, 1998 ..., ...." Councilman Gornto stated he agreed with that. He feels they need to make a decision regarding what they want, what they are willing to spend and what they are and are not willing to give up and once that decision is made, then you seek those types of people. He is not trying to derail interviewing but he doesn't see until they decide what they want why they would get personalities involved. Councilman Gornto stated Mr. Hooper's personal opinion and advice was an outside firm. Mr. Grace now leans the other way. Interim City Attorney Clayton informed Council they have engineering interviews coming up at 6:30 and they should break for dinner. After the engineers have made their presentation, it is expected Council will do the ranking to have the negotiations put to contract. At that point, City Manager Grace asked if it would be appropriate for Council to think about ranking the firms they just saw. She feels with that discussion they might be able to decide where to put this in the status or ranking. City Manager Grace stated even if they narrowed it down to the two top firms they are most comfortable with, at least the other three or four would know where they stand. County Councilman Jim Ward stated he got a call from one of the television stations and it seems they are going to bring back up a situation that happened here last year and they had a lot of dialogue about regarding the Southeast Volusia Regional Sewer System. He briefed Council on a meeting he had with Mayor Allman and City Manager Grace. County Councilman Ward stated the County has a Southeast Sewer System plant that is being contracted to be built in Oak Hill. The city of Edgewater stated they had the capacity to furnish that and were interested in doing that. There was a lot of dialogue back and forth and a majority of the County Council voted to go ahead and build a plant and not include Edgewater as the provider to treat the sewer. His personal opinion was that Edgewater would have been a better deal for the rate payers. The County Council voted to build a plant. County Councilman Ward stated if this comes up on a television interview in the next two or three days, they will know what happened. Edgewater made a proposal to treat the sewer from Southeast Volusia by the County providing SRF funds to lay the lines and contract with Edgewater to treat the sewage but his never happened. He just wanted to make Council aware of what happened. Councilman Gornto questioned if this is a settled issue. County Councilman Ward informed him yes but he wanted to make Council aware that this may be on television. The meeting recessed and reconvened at 6:30 p.m. Presentations by short listed engineering consultants for the Florida Inland Navigation District project with selection and ranking at conclusion Engineering presentations were made by the following firms regarding the Florida Inland Navigation District project: Hartman & Associates (Jerry Hartman) McKim & Creed (J.R. Sloan) Quentin L. Hampton & Associates, Inc. (Richard Fernandez) Mayor Allman explained the process they would be following. They would be ranked in order for commencement of negotiations. Page -5- Council Special Meeting February 9, 1998 ~ ~ There was a five-minute recess at this time. City Manager Grace stated if any of the Councilmembers want to get out on the table regarding their thoughts or impressions of any of the firms interviewed, now would be the time to do it before they actually vote. City Engineer Kyle Fegley went over the evaluation criteria. They have looked at the qualifications and experience with the firm based on their background of industrial/research parks. Councilman Gornto referred to differences he saw between the firms with what each one had in mind for the FIND project. One presenter had an alternative plan of cutting a street out into 10th street. We were told early on when the preliminary plan was laid out that this wasn't possible to be done. How can an engineering firm come here, if they have done much research at all, and not know that. City Engineer Fegley stated he thinks they were looking at the proper traffic circulation. We may have to rejuvenate the thought process of putting in a culvert pipe and making an access to 10th street. There was a brief discussion regarding bringing industrial traffic through the community college being absurd. Councilman Roberts feels it would be great if they could go out 10th street with something. He questioned the only reason the answer was no was because New Smyrna Beach didn't want access on to one of their streets. Councilman Gornto stated that is what he heard. Councilman Roberts stated the land and the FIND project goes right up to that street. How can they stop someone that owns property from putting access on to a road that they are adjacent to. Interim City Attorney Clayton stated they could make it very difficult to come into the City but it would be a question you wouldn't want to ask them in that way. If it has been asked and answered already, they may be able to come back with some way to sweeten the negotiation pot. When you hear no in this kind of business, it is always a maybe. Councilman Roberts feels access to an industrial park for manufacturing research and development would be an asset to New Smyrna. They would probably have people employed there also. He feels if it is a possibility it should be pursued. There was a brief discussion regarding the firms doing their homework and what they know about the project up to date and the work that had gone on before. Councilwoman Lichter stated that point she came up with professional presentation. professionalism of McKim & she read the three presentations. McKim & Creed as being the most She further elaborated on the Creed. At Councilwoman Lichter spoke about Hartman & Associates and Quentin L. Hampton & Associates, Inc. being before the City Council in the past. Councilwoman Lichter liked the fact that McKim & Creed said there were three things here: scheduling, budget, and project evaluation. She chose McKim & Creed as being number one. Page -6- Council Special Meeting February 9, 1998 '-' ..." Mayor Allman & Councilman Roberts agreed with Councilwoman Lichter. Councilman Hammond was impressed with the budget aspect. Councilman Gornto chose Quentin L. Hampton & Associates, Inc. with McKim & Creed as his second choice. City Manager Grace asked the Council to fill out their sheets because it is important who is ranked second. The number one choice will attempt to negotiate a contract. If we are unable to, then we would go to the number two firm. Councilman Roberts made a motion that McKim & Creed be contacted for negotiations as the number one choice, second by Councilwoman Lichter. The motion CARRIED 4-1. Councilman Gornto voted NO. Councilwoman Lichter made a motion to choose Hartman Associates, Inc. as the second choice. Mayor Allman gavel to Vice Mayor Roberts and seconded the motion. DIED 2-3. Councilman Gornto, Councilman Hammond and Roberts voted NO. & passed the The motion Councilman vice Mayor Roberts returned the gavel to Mayor Allman. Councilman Gornto made a motion to choose Quentin L. Hampton & Associates, Inc. as the second choice, second by Councilman Hammond. The motion CARRIED 3-2. Mayor Allman and Councilwoman Lichter voted NO. Interim City Attorney Clayton informed Council staff would begin negotiations. Mayor Allman asked Mr. Hooper to revisit his recommendation regarding the attorneys. Mr. Hooper reminded Mr. Grace the notice to proceed can't go out until they get a contract with FIND as well as for Phase II for the second part being the grant money. The City will be entering into a contract with them but notice to proceed and moving forward is dependent upon coming to an infrastructure agreement with FIND so the million dollars can be under the City's control as to how it is spent or jointly with them. The second part is the grant. Mr. Hooper stated his understanding of the direction was to advertise for a firm first. After the interviews, if Council was complete and content with that, that is what they were going to do. Before they advertised for an individual they were going to make the decision of go or no go on a contract. We were trying to get to the point when the decision was made of an outside contract with a firm before they went out for an individual. Councilwoman Lichter stated in other words if they haven't made up their minds for firms versus in-house it is not fair to the in-house who are applying. Mr. Hooper stated that is his own opinion. It would be a risk for someone to apply due to everything is public. Councilwoman Lichter asked Mr. Hooper if he considered Mr. Youkon a firm. Mr. Hooper elaborated on why he considers Mr. Youkon to be a one person firm. Councilman Hammond stated it would be hard to operate without an attorney here. Mayor Allman stated you can't. Councilwoman Lichter asked Councilman Hammond if he implied that we need an attorney here. Councilman Hammond clarified he was talking about at the meetings. Page -7- Council Special Meeting February 9, 1998 ~ """" Councilman Roberts asked if they should short list the four firms they spoke to tonight. If they are going to go with a firm they could narrow it down. If not, it is up to the Council if they all want to listen to private individuals. Mayor Allman stated they already decided they were going to have a workshop to determine that. Councilwoman Lichter asked if they are still considering an in- house attorney. She gets the feeling City Manager Grace leans toward in-house. City Manager Grace stated he is not adamantly against a contract situation. His comments were based on his impression of availability and cost. He doesn't think they are going to save a lot of money doing that. Mayor Allman stated if they get the proper insurance coverage they couldn't help but save money. Mr. Hooper stated not necessarily. Each Councilmember could spend a lot of time asking questions and getting answers. You can run up very large bills if you do it individually. He and city Manager Grace are not on opposite ends of this. We both say the sole reason to do it is not necessarily money. He thinks they will save money. City Manager Grace is being conservative. Part of that is a difference in style. Mayor Allman stated if they are going to have a firm that isn't going to handle it the same way Interim City Attorney Clayton is handling it to where they have a representative here a couple of days a week, then he wants in-house. He expressed concern with not having the same attorney all the time. Mayor Allman liked Councilwoman Lichter's comments about accessibility. He also likes the personal touch of knowing the person. Councilman Roberts asked about part time in-house. That means they would still have to outsource to other firms if major lawsuits arose. Councilwoman Lichter stated there are very few firms that cover every type of litigation. Councilwoman Lichter asked Interim city Attorney Clayton what she is being paid on an hourly basis. Interim City Attorney Clayton stated $100 with a 25-hour cap. Councilwoman Lichter asked Interim City Attorney Clayton if she felt 25 hours a week is enough to cover what the City requires. Interim City Attorney Clayton feels like the city of Edgewater has had a backlog of matters that may be attributed to a style that the city had in the past that maybe generated more adversarial relationships and she thinks the current Council and the current trend and City Manager Grace's tendency is going to be proactive and it's going to be trying to improve customer service. She sees the decline of the need for services as opposed to the increase. She thinks the City of Edgewater, if it is going to keep on its course, is going to find people joining as opposed to fighting which causes a decline in the need for services. Interim City Attorney Clayton spoke about the city in the past having insurance coverage after a very large deductible. The City now has an insurance policy with a $5,000 deductible. The City will have a great deal more defense provided through the insurance carrier than out of the general fund. She stated you have to be cautious on the back end if they come in and raise premiums based on the audit of experience. Councilwoman Lichter asked how phone calls work with Interim City Attorney Clayton. She stated she really hasn't had a whole lot of telephone calls. Page -8- Council Special Meeting February 9, 1998 '-" ...., Mr. Hooper stated if the Council decides they want to do a contract or a firm, they should monitor it for six months. Manager Grace feels it would be easier to test a year or so an outside attorney then to hire an inside attorney. city with Councilman Roberts stated if they are going to keep Interim City Attorney Clayton on board especially with the two pending lawsuits, should they hold off on hiring another firm even if it is part time until those are completed. otherwise they will be paying Ms. Clayton and another firm or individual. If they hired someone else, they would just retain her for those lawsuits and not for any other city business. Councilwoman Lichter feels if they stay status quo on this subject it would give City Manager Grace more time to get used to the Council. Mayor Allman entertained a motion to have the word Interim removed from Interim City Attorney Clayton's title. Councilwoman Lichter would like to see what legal fees are costing in black and white so she has something to make a comparison with. Councilman Roberts asked Interim City Attorney Clayton if she felt a firm would sign an agreement with the City for six months. Interim City Attorney Clayton stated retaining legal services in this fashion are different than employing someone to drive a truck. City Manager Grace stated he suspects contracts in other places have a termination clause with a 30 or 60 day notice. There was some discussion regarding how efficient Robin Wolf is in the Legal Department. Councilwoman Lichter is not sure she wants to tackle an in-house attorney right now and feels the status quo for the next month or so is efficient. Councilman Gornto suggested ranking the firms they have heard from. Interim city Attorney Clayton stated as far as the status quo is concerned, she thinks if they have the issues about the costs and services, City Manager Grace will have his time now to get a feel for what he needs and then we can revisit this subject. The firms are available for engagement at any point Council decides. Mayor Allman stated he likes the aspect of Coble, Woods, Webster, Bush, Clayton and Teal being local. He spoke about being very impressed with Donna McIntosh. Mayor Allman chose stenstrom, McIntosh, Colbert, Whigham & Simmons as number one and Coble, Woods, Webster, Bush, Clayton & Teal as number two. Councilwoman Lichter chose Stenstrom, McIntosh, Colbert, Whigham & simmons as number one and Foley & Lardner as number two. Councilman Roberts chose Stenstrom, McIntosh, Colbert, Whigham & Simmons as number one and Coble, Woods, Webster, Bush, Clayton & Teal as number two. Councilman Hammond chose Stenstrom, McIntosh, Colbert, Whigham & Simmons as number one and Coble, Woods, Webster, Bush, Clayton & Teal as number two. Councilman Gornto chose Stenstrom, McIntosh, Colbert, Whigham & Simmons as number one and Coble, Woods, Webster, Bush, Clayton & Teal as number two. Page -9- Council Special Meeting February 9, 1998 "..... "WI' Councilman Gornto made a motion to rank stenstrom, McIntosh, Colbert, Whigham & Simmons as number one, second by Councilman Roberts. The motion CARRIED 5-0. Councilman Gornto made a motion to rank Coble, Woods, Webster, Bush, Clayton & Teal as number two.A The motion CARRIED 4-1. Councilwoman Lichter voted NO. drd ~Obl~~5 City Manager Grace clarified the Council wants to stay with the status quo with Interim City Attorney Clayton until we essentially reach the end of the outstanding litigation. In the meantime, he could start negotiating a contract with the number one firm. Interim City Attorney Clayton feels the two matters pending should be disposed of in reasonably a foreseeable future. Mayor Allman stated he would let the firms know about the ranking. He doesn't see any sense in going into a contract negotiation with them at this point. Councilwoman Lichter felt it was interesting that Ms. McIntosh had reviewed the city's cases. Interim city Attorney Clayton stated Dan Webster had also done the same. Councilman Hammond made a motion to have Interim removed from Interim City Attorney Clayton's title and have a name plaque made, second by Councilman Gornto. The motion CARRIED 5-0. City Manager Grace stated they are trying to find a time to schedule interviews for the engineers and architects for the rec center. He asked Council about coming in around 5:30 on March 2nd to hold the interviews. Council agreed. ADJOURNMENT There being no further business to discuss, Councilman Hammond made a motion to adjourn. The meeting adjourned at 9:04 p.m. Minutes submitted by: Lisa Kruckmeyer Page -10- Council Special Meeting February 9, 1998