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01-28-1991 - Special .., , \ ..... ." CITY COUNCIL OF EDGEWATER SPECIAL MEETING JANUARY 28, 1991 MINUTES Mayor Wessler called the meeting to order at 5:00 p.m. in the Community Center. The following were on the agenda: receiving a report from Attorney Nikki Clayton regarding the City Attorney issue, and Council should be prepared to make any decision necessary regarding the City's legal counsel status. ROLL CALL Mayor Tanya Wessler Councilman Kirk Jones Councilperson Louise Martin Councilperson NoraJane Gillespie Councilman Michael Hays City Attorney Jose' Alvarez City Manager Elly Johnson City Clerk Susan Wadsworth Police Chief Lawrence Schumaker Present Arrived later Present Present Present Present Present Present Mayor Wessler recessed the meeting at 5:02 p.m. to await the arrival of Councilman Jones. She called the meeting back to order at 5:17 p.m. Nikki Clayton, lawyer with Baker & Hostetler, stated she handed them a faxed letter from Jose' Alvarez's lawyer today and they accepted the City's offer of a $23,500 settlement. She said she handed out with the letter a marked up rough draft of a standard form of agreement in situations like this. She said the agreement would provide for the transition. She explained in Florida it's not legal to pay someone for work that has not been performed to a public agency and the contract is drafted in such a way that Mr. Alvarez is asked to continue as independent legal consultant in the transition. She said he'll transfer the files and all City property he has back to the City and pro v i de adequate consultation to whoever will receive the files so that person can pick them up and carry them forward. She said for that he'll receive the $23,500 payment for independent legal consultant services in the transition. She said it would be a simple agreement, unless Council has additional suggestions. She pointed out it provides for a statement of both parties about the manner of the termination and calls for both when asked to speak in those terms about the reason for the termination and separation of the relationship and that's so the tenure of the transaction remains dignified and amicable. She said it's considered to be a breach should that not occur and the City's required to speak in factual and truthful and non-adversarial terms about the termination. She added Mr. Alvarez will release the City from any and all claims he might have and the City has been asked by the attorney to release Mr. Alvarez but she told Mr. Shepard she would recommend to the City they agree to re 1 ease Mr. Alvarez for all th i ngs not related to claims they might have for his nonfeasance, misfeasance, or malfeasance. She said he was acting as a lawyer for the City and in conjunction with the professional services there's a certain amount of liability. She added if in rendering those services for which he was paid there was nonfeasance, misfeasance, or malfeasance, she doesn't not believe he would be entitled to be relieved of that and would not recommend to the City to relieve him of that liability. She apologized for the presentation, adding time was short today. Councilman Hays said on the second page when it discusses compensation and rates, would that be a lump sum at the end of the consultation period or so much a month. Ms. Clayton replied that needs to be worked out between her and Mr. Shepard and it depends on how fast and how cooperative he is, but it's the City's protection they get back what they're entitled to and he could receive it as a last act, and if he wants to receive portions of it, that's fine. She added as fast as they want to proceed is how fast he'll get the funds. She explained it could be divided out by 3 weeks and get a portion or take a month or two months and she's giving him a little flexibility. Councilman Hays asked how long this transition normally takes in her experience, and how long until they bring a new attorney on board. Ms. Clayton replied she doesn't anticipate very long at all but there will be questions in the future that will come up with an open file and there's that element of needing to refer back and the transfer of the files provided they have been kept in normal fashion should not be any time at all but even though someone picks it up and looks at it, there may be some factor that has to be referred back to the City Attorney who may have personal knowledge. She said there will be some lingering things they will have to refer back. "- - . ~-- .~ ~ ...., Councilman Jones said Mr. Alvarez was never relieved of being City Attorney and the 1 ast two months he was not gett i ng his reta i ner. Ms. Clayton stated he received it for November and December, but not for January, and that was discussed with his attorney and she told his attorney as far as she is concerned she would recommend the termination be deemed the 31st of December and January was not an element of discussion. Councilman Jones asked if it would be just the $23,500. Ms. Clayton replied yes. Mayor Wessler asked if they need a motion to accept or direct. Ms. Clayton stated to continue to conclusion and bringing back an agreement substantially in this format and it would provide for termination as of the 31st of December and provide for pretty much what she's outlined verbally. She added the public statement would be an attachment, and if they don't have any comments about how they want the public statement to appear, it would be pretty standard. Councilman Jones asked if they have a malfeasance charge, why are they offering him anything and they won't have to give him anything if they can get him for malfeasance. Ms. Clayton replied that's correct, but they wanted to make an immediate transition upon being seated as a Council and it's called laying a predicate. She said in a public body they have a responsibility to all employees, whether wage earners or at will employees, of giving them an opportunity to protect their property interest in their employment with the public body. She said if they had laid the predicate of reasons for termination with Mr. Alvarez and then found there was cause, they would have been able to proceed without affecting his property rights and property interests under the U. S. Constitution and cases that have come down out of the u.S. Supreme Court that would give him a right to notice and hearing and name clearing hearings and a variety of other procedural protection the Constitution is held to give all employees of public bodies. She stated since they preferred to proceed, and itls within the discretion of the public body, with some dispatch, it's clear there was a feeling that had been in existence for some time within the jurisdiction that his advice was more expensive to the City in detrimental terms than otherwise and it's normal for someone to want to make an immediate change. She said rather than argue about whether cause really did exist and relate it back to the termination, they provided to him an offer that says they may have not proceeded exactly correctly procedurally and this is in recognition of his long tenure and respect for his long service but they'd like to find their own attorney. Mayor Wessler asked to include in the motion to direct the Mr. Johnson to allow Mr. Munoz to pay this at Ms. Clayton's request. Ms. Clayton suggested it be subject to final execution of the agreement and appropriate execution on both sides authorization for the contract to be terminated effective as of the date specified in the contract, the City Attorney contract to be terminated effective as of the date in the settlement contract and payment of $23,500 under the terms of the contract, whether in one lump sum at the final closing of the contract, or in periodic pieces, and that would be left to Mr. Alvarez's selection. Council person Martin so moved. Councilman Hays seconded the motion. Motion CARRIED 4-1. Councilman Jones voted NO. Ms. Clayton stated she told them she'd have a proposal but she doesn't have that proposal and has been asked by Council for an estimate of time taken up in pursuit of this activity. She said she came to four meetings, this being the fourth, discussed individually with them, and did some negotiating with Mr. Alvarez's attorney and has 24-25 hours in what's gone on so far which is about three 8-hour days. She proposed between now and February 4th she'll provide a proposal and it will be a month to month basis and she'll agree to act as Acting City Attorney and will provide them a quote for a monthly fee that will include an estimate of hours that would be appropriate and will bill all meeting time and travel time at one-half time and she expects 2-3 months before they get another lawyer in some capacity. She estimated in the past they spent about $5,000 a month on legal services with the former City Attorney and it should be something in that neighborhood. Mayor Wessler asked if it would be at $165 an hour if they needed something between now and next Monday. Ms. Clayton replied if she can do it off hours she'll give them a special break but if it requires during office hours it would be at that rate until they could pick up in February with a new month and new arrangement. 2 Council Special Meeting January 28, 1991 ~ " ~ . ~. ..."" ~ Mayor Wessler asked for a motion to accept Ms. Clayton's offer to represent them through next Monday should they need anything, if Council wishes. Councilperson Gillespie moved to use Ms. Clayton's services as discussed through next Monday, if needed. Councilperson Martin seconded the motion. Councilman Jones asked if it's $160. Ms. Clayton replied it's $165. Councilman Jones stated it's 25 hours total at present. Ms. Clayton agreed. Councilman Jones asked if they're just moving to extend it until Monday. Mayor Wessler replied until Monday, if they need anything, but if after office hours it will be reduced. Councilman Jones asked if after Monday she'll have a special rate. Mayor Wessler replied she'll have a proposal. Motion CARRIED 5-0. Councilperson Gillespie moved to adjourn. Councilman Hays seconded the motion. Mayor Wessler announced they'll have a Parliamentary Procedure class going on after this and they're doing it in the Sunshine and public and press are invited to attend. Meeting adjourned at 5:38 p.m. Minutes submitted by: Lura Sue Koser L-- Lrb ~') !fe-y--- ./ j ;"z/ (. ,"- ATTEST: -L-~- - CITY CLERK A~o'led th i s Y day of ~ ' 1992-. ~.~ (~ ' ~_r ~ i r\, ) . ~-.J.A;\~j~O~Y-....--- MAYOR ~." ~~ 3 Council Special Meeting January 28, 1991