12-06-1990 - Special/Workshop
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CITY COUNCIL OF EDGEWATER
SPECIAL MEETING/WORKSHOP
DECEMBER 6, 1990
MINUTES
Mayor Wessler called the meeting to order at 7:00 p.m. in the Community Center.
She stated the purpose was to discuss the City Attorney.s contract and request
Council's approval to bring in outside legal counsel. She explained she found
out they cou 1 d approve th i s through the City Manager and they have 1 ega 1
representation tonight from Nikki Clayton from Baker and Hostetler.
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
Present
Present
Present
Present
Excused
Excused
Present
Present
Mayor Wess ler stated that City Attorney Alvarez asked for permi ss ion to be
excused and she granted it. J} ,.
Amended section is reflected in 1-7-91 Council minutes1~
Mayor Wessler stated they'll have citizen comments but she cautioned they are
dealing with a professional person and they need to be sure what they say is
based on fact and not on personalities because they'd open themselves up if they
go by rumors or fictitious comments at all. No Council member expressed an
objection to hearing citizen comments at this time.
Bill Klein, 2910 Needle Palm Drive, questioned the legality of this Council
hiring an attorney without first bringing it to a roll call vote. He said he
understands they have an attorney and he's met the attorney and he also questions
the fact the Mayor and another Council member had a meeting at 6:30 with the
counsel, as it's a violation of the Sunshine law. Mayor Wessler stated she did
not meet with any other Council member and Mrs. Martin was standing at the door
and she was in a meeting with the attorney. Mr. Klein stated they were both in
the building and the door was locked. Councilperson Martin stated the door was
locked because she was explaining to the Industrial people why they couldn't get
in. Mr. Klein stated it1s a violation of the Sunshine which will be filed. He
questioned the fact they have legal representation, after they take a roll call
vote, then they're entitled to representation but they didn't do that beforehand
and the citizens shouldn1t have to pay for it tonight.
Frank Roe, 2732 Juniper Drive, stated he doesn't know if they all ran on the
campaign of too many outside counsellors but he's heard it by quite a few that
the last Council had too many consultants and he doesn1t like to see them go on
this trend. He stated he's not criticizing Council but they should be able to
live without them and without expenses incurred by hiring. He said at the last
meeting he'd advised them to try to work for the next 6 months with everyone
and find out everything on their own and not listen to people's comments outside
a meeting like this and draw the conclusion on that. He said once they're
elected they serve the people and he asked them to make it the best Council ever.
Dominick Fazzone, 302 Paradise Lane, stated it was in his heart to say what Mr.
Roe said. He said after the election he thought they'd try to have a healing
process in the City and would have a City people would be proud of and they'd
have to work together, and he believed that would happen but at the last Council
meeting it didn't happen. He stated that within minutes of the first meeting
a motion was made that, and he quotes from what Mr. Hays said, III personally do
not feel I have good faith in the attorneyll and he added "he felt he couldn't
work with Mr. Alvarez and had problems with Mr. Alvarez's contractll, according
to the papers. He asked how many had known Mr. Alvarez before they were elected
to Council, he knew Mrs. Martin and Mr. Jones had, but he didn't know about Mrs.
Gillespie, Mayor Wessler, or Mr. Hays, and how long they.d known him. Mr.
Fazzone stated he's known Mr. Alvarez 6-1/2 years, he's formulated our boards
and every single by-laws had gone through his scrutiny to see they're in order.
He said in the years he's known him he's been a gentleman to the point he never
heard him have words with people and always acts in a gentlemanly fashion.
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Dominick Fazzone (Continued)
Mr. Fazzone stated Mr. Alvarez has been here 9 years and in that 9 years has seen
many other upheavals in the City administration where they have had 4 Councils
elected and 4 defeated and Mayors go and they had three City Managers in two
years and he's been through all this and was a steadying influence to the point
there's some continuity to the administration. He stated Mr. Alvarez started
the self-insurance fund a few years back and they have over $1 million in the
fund. He asked they be fair with anybody as theylre a newly elected group and
it seems reasonable that Mr. Hays says he personally doesn't like him and didn't
think he could work with him, but it seems the right thing to do is to give every
person a chance, and if they're going to dismiss them or get rid of them, to give
just cause. He said some Council people are level headed and knew immediately
to get rid of Mr. Alvarez wasn't the right thing, and it might be the right thing
in the future if they feel he's not doing his job. He added held asked other
peop 1 e what he was do i ng they d i dn I t 1 i ke and there was no reason except
statements made by other people to them that he didn't do this or that and didn't
pay attention at Council meetings and didn't come up with the kind of opinions
where they'd know what he's talking about. He said his opinions have been very
valued by many people throughout the community. He asked them in a sense of
fairness to judge him as a fair person. He stated theylre in America and not
in the other countries and they should treat each other with fairness and this
Council has the capability to be fair.
Ken Millard, 238 N. Riverside Drive, stated he's been involved in the Charter
the last couple of years and he approached this problem tonight from that point
of view and not from the point of view of the individual. He said it seems when
a president takes office in this country, he immediately throws out the old
administration and appoints his own people and that might be good or bad, and
in this State when Lawton Chiles was elected, he made statements about who held
get rid of right away, such as the lady running the lottery. He wondered if
there may be a principle to discuss rather than a person and that's the right
of a new administration at any level, whether municipal, State, or County, or
national, to select their own staff. He said they have the right to keep
someone, without cause or anything negative, and to say they prefer to choose
their own people. He added that's the approach held take if he were on Council.
He said it's almost the same as having a lame duck Council, which they shouldn't
have, and perhaps they should think of a Charter provision for that and for staff
to state the incoming Council should have the prerogative, if not the duty, to
pick the best people to serve them and they should have the right to do that and
select their own without a trial, without a hearing, and without down playing
anyone. He stated it's a principle they may want to discuss rather than the
personality.
Art Llovd stated he witnessed what the first speaker observed and his recall was
different, it was simply the Mayor unlocked a locked door and let a woman in
and thatls the end of the story. He said he waited for a few moments to see
what was going on and nothing transpired. He said the first speaker's recall
and his are at 180 degrees.
Brian Mever, 2926 Tamarind Drive, asked if he could question Mr. Alvarez. Mayor
Wessler replied her attorney said no. Mr. Meyer stated he's giving notice that
an ordinance that's been passed, 86-0-28, reflecting utilities and services,
particularly the water, the last page was signed by Josel Alvarez, and there are
two possible conflicting Statutes in the Florida Statutes under the 1989 revised
version. He stated #1 is 180.135 under utilities services and municipal public
works, and the second is 86.67 under landlords and tenants. He submitted the
documents for further review.
Doris Hill, Lincoln Road, stated she went to her car to get a cushion and thought
she saw Mrs. Martin unlock the door and the Mayor was in the back so she doesn't
know how Mr. Lloyd saw it. Mayor Wessler asked if she saw her in the back. Mrs.
Hill replied yes, and she doesn't know how Mr. Lloyd could say the Mayor unlocked
it because she thought she saw Mrs. Martin unlock the door. Mayor Wessler stated
it doesn't matter what anyone saw because it's not what they're discussing
ton i ght.
Mayor Wessler then closed the discussion for citizens and opened it for Council.
2 Council Special Meeting/Workshop
December 6, 1990
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Councilman Jones stated he spoke his piece at the last meeting and has listened
to citizens' comments. He stated the man's survived 9 years in City government
of Edgewater and he should be commended. He said he's not speaking up for him
and he might have some problems this Council should look at, but he doesn't like
the way they're doing it. He added he knew him because he was on the Parks and
Recreation Board and was at a few meetings and he's had a chance to work with
the man and he's done a lot in those 9 years. He said if he1s made a couple of
mistakes, they're all human. He pointed out they all have dreams to get the
community back on their feet, but people seem to like the negative and not the
pos i t i ve, and they shou 1 d get on the pos i t i ve and turn the City around. He
stated he doesn't want to get involved in something like this because they didn't
have a chance to work with the man and the community has to give the man a
chance. He added if he was that bad, the town would be coming down after this
man's jugular. He said Mr. Millard was right that as a new body they can make
changes and he's willing to make any changes he's convinced are needed.
Councilperson Martin stated her concern, and it was her concern two years ago
when she ran for the same office, is the cost of a part time attorney within the
City. She said they're not Miami or Daytona Beach and she feels the expenses
are very high and the fact that a $5,000 increase was put in through the budget
without discussion doesn't sit well with her.
Councilperson Gillespie stated at their population they1ve reached the point with
the needs of their CIP for a full time attorney.
Councilman Hays stated he can add very little to what he proposed before and he
feels it's their right to reorganize and structure in a manner that suits them
to serve the needs and desires of those people that put them in office. He added
that regarding Mr. Alvarez, there's no personality conflict as such as some might
think, this is not a personal vendetta, and he says what he does out of his own
convictions, his personal opinions, and his beliefs. He stated he's not an
attorney, it's not a legal opinion, and regarding Mr. Alvarez's contract, he
has a real problem with inheriting someone else1s contract. He pointed out this
contract is someth i ng agreed to by another Counc il at another time and he
personally would never have approved of this contract and questions how fair or
ethical it might be to have such an iron clad binding contract. He said a ruling
from the bar might be interesting on that topic. He stated past Councils put
into effect a contract that binds us and there's no end to it as such. He said
he thinks the conception of this was wrong, it was a mistake, and it needs to
be corrected. He stated he persona lly doesn't fee 1 a contract such as th i s
should exceed the term of office of the people who put the contract into effect
and the concept is too binding, and he has personal problems with doing that.
Councilman Hays said he's had many phone calls this week and this is obviously
an item of discussion and concern throughout the City, and any time you have
change within the City, people get uncomfortable with change at any time. He
explained he didn't make the motion to make people uncomfortable, he made it
because he thought it was in the best interest of the City. He added he I d
promised people held do the best he could for the City when he was elected, and
he agrees with Mr. Jones that as a Council and Mayor they can make Edgewater a
better place for all of them and they have to start and organization and
reorganization will be a key factor in this. He said to keep what they inherited
would be very difficult and he doesn't know if they would progress in the
direction they may want to go.
Councilman Hays stated there was some discussion on what he said the other night
being legal and Mr. Alvarez's opinion was something to the effect that it was
the most illegal thing held ever heard and the concerns that a suit might follow
to the City or Council members or himself personally. He said he believes any
client will have the right to separate his or herself from an attorney and he
cannot go with the part that it must be for cause. He stated Mr. Alvarez has
been paid for the work he's done to date and he's done quite a bit for the City,
he's sure, over the last 8 or 9 years. He said he doesn1t know if they have
large outstanding bills and he understands he's been paid on a monthly basis or
to date and he doesn't think that should be a problem. He said in Mr. Alvarez's
contract there's quite a discussion regarding severance pay and if the contract
is broken without cause, and he reads it that cause would be a very difficult
topic and he's not here for cause. He said as far as severance pay for this type
of situation, Mr. Alvarez is a part time attorney for the City, and he also
works for another City and has a private practice and other incomes.
3 Council Special Meeting/Workshop
December 6, 1990
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Councilman Hays stated when Mr. Alvarez took this job if he had severed all those
contacts and worked solely for the City of Edgewater, then he'd think severance
pay would be in line and fair until he got out in the world and pursued his other
careers, but he doesn't think a loss of a part time contract with the City of
Edgewater will cause Mr. Alvarez to starve to death as he has his other business.
He said he objects to that part of the contract also. He challenged anyone to
produce a contract with any other City Attorney in the State of Florida as
binding and iron clad as this because it's too much for him to swallow. He
suggested they address it when they address the Charter later on so these
mi stakes don't happen aga i n and they don I t have to address it aga i n and go
through these things again.
Councilman Hays requested this topic be on the agenda on the 17th so they can
bring this to a vote and decide one way or another and get on with doing the job
the people have elected them to do.
Mayor Wessler stated she has some personal feelings about the contract also and
doesn't like to be held to a contract where the City has no option. She asked
their attorney to speak.
Nikki Clayton, lawyer with Baker and Hostetler in Orlando, Florida, stated she
was asked to come because they have a difficult situation which many elected
officials find themselves in where they have on the one hand limitations with
the Sunshine and on the other hand concerns with members of their professional
staff or support. She said in the old days before Sunshine the officials were
able to deal with their City Manager or City Attorney in ways that didn't beget
a lot of unfortunate publicity, but now with government in the sunshine you enter
into difficult moments like this where a Council wishes to discuss its
relationship with its professional, whether Manager or Attorney or Engineer, and
you have all the eyes of the electronic media and the constituency. She said
she believes elected bodies are well served by maintaining this very formal and
courteous tone and if she can be of assistance in maintaining that, she'd
recommend, based on a couple of principles, how to move forward. She said as
a general principle boards are not able to bind future boards by actions they
take, but there are exceptions to that and you see in transitions where you have
elections that the newly elected officials wish to select their team and at that
point, as is a matter of custom more than anything else, the people serving the
prior boards will generally come to some kind of understanding on terms. She
said starting with the general principle that an elected board is unable to bind
future boards, except for certain circumstances, is this situation with Mr.
Alvarez one of those kinds of situations. She said they can get into discussion
with Mr. Alvarez's attorney and ask for discussion back and forth on legal
points, they could decide they are going to exercise another prerogative of an
elected body and that is, rather than discuss the matter they can choose not to
appropriate the funds to fund these contracts and that's part of the discretion
of an elected body. She added if these funds are part of a genera 1 fund
allocation, it's not possible as a general rule to bind those funds out of
general funds for a period of longer than a year without having a vote. She said
the rule often has been expanded because of convenience, because it's difficult
to keep making contracts every year so you'll have renewal provisions in them.
She said the board might want to discuss it and she suggested they determine if
they want to discuss it now, whether they wish to direct her to engage in
discussion with Mr. Alvarez and his attorney on their behalf, and what they'd
like her to discuss with them, or whether they wish them comment at the moment.
She said because they have chosen to make this a matter which will not deal in
personalities, they need to determine how they wish to proceed and if they want
to have investigation of the termination of the contract, then they may wish her
discuss it with the parties involved so they could understand they have any
interest in that as a matter of approaching it or whether they wish to continue
the discussions in public and to get into more fact finding.
Mayor Wessler asked if any Counci 1 member wished to speak to Mr. Alvarez I s
attorney. Councilman Hays asked who it is.
Bill Shepard, Shepard and White, Jacksonville, said he's learned there's a
government in the City of Edgewater and hopefully they'll do right, whatever that
might be. He stated he won't engage in a debate with Ms. Clayton or anyone else
in an impromptu situation. He said he also learned tonight why they built court
houses because his view of this situation is a little different from Ms. Clayton.
4 Council Special Meeting/Workshop
December 6, 1990
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Mr. Shepard stated Mr. Alvarez authorized him to engage in discussion with Ms.
Clayton about anything they want them to talk about and it's Mr. Alvarez's desire
to continue under the binding contract that exist for an additional two years
to represent them and there are some other ramifications here, perhaps of
Constitutional dimensions. He said he'll be happy to sit down with Ms. Clayton
and get this matter resolved in a friendly atmosphere in order to carry out the
City business and that's their intent. He added if they can do that, everyone
will be better served, and if they cannot do it, then everybody will do what they
have to do. He said he's available to discuss whatever is to be discussed.
Mayor Wessler asked Councilman Hays if held like Ms. Clayton to discuss Mr.
Alvarez's contract, possibly the points that are questionable, or what he'd like
her to discuss.
Councilman Hays stated Mr. Alvarez and his attorney feel he has a contract that's
binding with the City of Edgewater on them sitting there tonight and binding for
the next two years. He asked if that's correct. Mr. Shepard replied it's until
September, 1992, the way he reads the contract, and in addition it creates an
expectation of continued employment that would have Constitutional ramifications.
Councilman Hays stated he still questions whether or not any contract they would
inherit would be binding for the term of their office and he questioned this,
not being an attorney, but from some information he came across dealing with an
item, Rosenberg versus Levan, #57530, the Supreme Court of Florida, dated January
7, 1982, a rehearing denied March 4, 1982, from the Sunshine Reporter. He said
it addresses basically what he brought up tonight and has some interesting
paragraphs. He asked if Ms. Clayton is familiar with this. Ms. Clayton replied
she doesnlt know the case and she's not sure it would be necessary to go into
the case now and perhaps she could outl ine two simple steps. She said the
contract says they can determine that they wish to terminate and they have
particular voting requirements for that termination and they have three-fifths
for indictment or criminal charges and four-fifths for cause, and they could
elect to commence a public proceeding in which they seek to find cause for
termination of the contract or they could direct her to discuss with Mr. Alvarez
if it1s the majority of Council wishes, and his attorney, if they have any other
views as to their expectations of the contract.
Mayor Wessler asked if Council wants Ms. Clayton to discuss with Mr. Alvarez's
attorney his contract, what they'd like out of it, what is best for them, and
have her come back to them at the next meeting so it can go out for a vote.
Councilman Jones stated they're at a standstill and need to progress and if
that's what's needed, maybe they need to get the two lawyers together and hash
out what they need to do. He pointed out this costs money and he hates to see
the taxpayers' dollars be spent for legal fees. He said the City Attorney's
directed by Council and does what Council tells him to do, for 9 years he's been
directed and he doesn't tell Council what to do.
Mayor Wessler stated they had discussion and now they want to find out how to
proceed. Councilman Jones again said money will be spent and if the two get
together, it's fine with him.
Councilperson Martin stated if this meeting between the attorneys will clear the
air to get on with more important programs, she thinks they should do it.
Councilperson Gillespie stated she favors the two attorneys getting together and
bringing the results.
Councilman Hays stated his gut feeling is it's their decision to make, they need
to make it, that's what they're here for, and he thinks they need to decide.
He said he understands what Mr. Jones said and it's not the point to get them
into more legal fees but to end this and get on with business, then yes, let's
go ahead and have it soon.
Mayor Wessler stated shelll entertain a motion to retain Ms. Clayton so she may
go with Mr. Alvarez's attorney and discuss all the legal ramifications this
might have and bring it back to them at the next Council meeting so they can go
ahead and vote on it. Councilperson Gillespie so moved. Councilperson Martin
seconded the motion. Motion CARRIED 5-0.
5 Council Special Meeting/Workshop
December 6, 1990
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Councilperson Gillespie moved to adjourn. Councilman Hays seconded the motion.
Meeting was adjourned at 7:47 p.m.
Minutes submitted by:
Lura Sue Koser
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6 Council Special Meeting/Workshop
December 6, 1990