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11-28-1984 - Special r Q v CITY COUNCIL OF EDGEWATER SPECIAL MEETING NOVEMBER 28, 1984 MINUTES Mayor Earl Baugh called the Special Meeting to order at 7:00 P.M. in the Community Center. Mayor Baugh read the items on the agenda were to: appoint a negotiator for the Association contracts, consider Resolution 84-R-55, and consider Reso- lution 84-R-56. ROLL CALL Mayor Earl Baugh Councilman Louis Rotundo Councilman Russell Prater Councilman Neil Asting Present Present Present Present Councilman James Inman City Attorney Jose' Alvarez City Clerk Connie Kinsey Police Douglas Betts Present Present Present Present Appoint a negotiator for the Association contracts - Mayor Baugh recommended that Council appoint Councilman Asting as the negotiator for the contracts for the City since he's been familiar with the contracts up to this point and has the knowledge to negotiate them. Mr. Mel Wargo, 2 Pines Edge Court, offered Council his services as negotiator since he handled the negotiations to this point and they're going into hearings with special masters. He stated that he'd do it free of charge and anything he does would be subject to approval of Council. Mayor Baugh thanked him for his offer. Councilman Rotundo moved to appoint Councilman Asting as the negotiator. Councilman Inman seconded the motion. Motion CARRIED 5-0. Consider Resolution 84-R-55 - Councilman Asting said he'd like to see the City Clerk restored to perform those duties she previously performed prior to the action taken during the last meeting of the former Council. He noted that Council needs someone to transmit their instructions and decisions to department heads and City Clerk Kinsey has been doing this. He moved that she be restored to those duties taken away from her and that the City Attorney draft a resolution to that effect. Councilman Inman seconded the motion. Councilman Rotundo questioned if they should repeal this Resolution first and Mayor Baugh suggested they just draft a new Resolution, and asked the City Attorney's advice. City Attorney Alvarez said it would depend on the nature of the changes and sometimes it's easier to repeal and enact a new one. Mayor Baugh said the intent is to have the duties as in the old resolution. Motion CARRIED 5-0. Consider Resolution 84-R-56 - Councilman Asting stated that he'd like to see Chief Betts work out his appointment as Chief for the full probationary period. He recalled that he was hired on July 16th to start work on August 1st and he still had 2~ months to go on his probation, and he'd like to see the probation continue so this Council can make a judgement because they'll have to work with him for the next two years and they'd like to observe his performance. Councilman Inman said he agreed with Councilman Asting in one respect but he stated that Chief Betts will not get a hatchet job like the present Mayor got when he was Chief of Police. He said he believes in giving everyone a fair shake and there's no personal vendetta involved, and he's for someone who can do the job and do it properly and doesn't want to see anybody get railroaded. He added that he thinks the Chief should continue his probationary period because there are matters that he wants to talk with him about. Attorney John Tanner, representing Chief Betts, requested permission to speak to Council before they make a decision because if a Council member states his position he might feel duty bound or out of pride tend not to be swayed. o o Consider Resolution 84-R-56 (Continued) - Attorney John Tanner (Continued) - Attorney Tanner stated that Chief Betts came to him the previous day to ask his representation in this matter and when he asked him exactly what the matter is the Chief said he didn't know but there was an agenda notice that Resolution 84-R-56 was going to be considered. He stated that he didn't have an adequate opportunity to prepare a reasonable response if according to Councilman Asting's motion they are planning to repeal or modify the Resolution. He asked that Council consider some factors that are relevant to the suggestion and one is that it will be detrimental to the law enforcement arm of this City and also to the persons who voted for each of them to hold this office, and also to the Council members themselves. He said he read the Resolution that's being considered and his position is that this Reso- lution was a lawful and binding result of a duly elected Council and some are still here. He said it's the word of the City and integrity is involved here. He said if employees or department heads or outside citizens cant depend on the continuity of City government to uphold and honor prior commitments or obligations entered into by some of the predecessors, they lapse into a state where the City becomes a body that lacks credibility. He stated that Chief Betts has what appears to him to be a contract that is binding upon the City government and was authorized by the political body and should not be summarily set aside without just cause or without notice and without an opportunity to be heard_ He said under section 3, subsection 3, the language is that Chief Betts' appointment is made with terms and conditions that termination shall be by cause only, and said cause shall be malfeasance, misfeasance, or nonfeasance after written charges specifying the reasons and an opportunity to repute said charges at a hearing and shall afford procedural due process. He said the suggestion being considered is that Chief Betts be returned or placed on a status of probation and to take a bona fide fully estabished and recognized Chief of a department and to come on board as Council and suddenly place him, or anyone, on probation is a clear act of discipline, or at the least perhaps distrust. He said this would subject this Council to criticism and there are those in this community who are saying this is a hatchet job, there will be an immediate housecleaning of certain persons and agents by the new Council and the Chief would be gotten rid of and he might as well pack his bags. He said there are also rumors that Mayor Baugh will then resign and return to his previous position of Police Chief. Mayor Baugh stated that's rumor and he has no intention of taking that job back. Attorney Tanner noted that he's not making an accusation and the rumors are also that then Councilman Asting will become the Mayor. Councilman Asting said that he resented that statement. Mayor Baugh said that he can lay that to rest. Attorney Tanner stated that some people believe that. Attorney Tanner advised the Council that the Chief considers this to be a valid and binding contract with the Resolution and he gave up other employment to take this job and he was given certain protection by the prior Council as most employees and agency heads in this City government have, by ordinance, law or by the Constitution. He continued that to now place him on probation without cause and without any written reasons to give him notice as to why he would be so disciplined and not give him an opportunity to secure counsel and let that attorney investigate what is causing the suspicion or discomfort with Council and to offer evidence, if evidence is offered against him, to contradict that which would cause them to place him on probation. He stated that without pro- viding him with those opportunities, they will have summarily deprived him of due process of law in violation of the State and Federal Constitutions and would have placed him in his job in jeopardy in clear violation of a written contract under which he is willing to perform. He said he will not argue with Council but Councilman Inman indicated that he wanted to observe the Chief in his job for awhile before he determined one way or another to let him stay on as a permanent employee. He said that's contrary to the already existing con- tract and he knows of none and asked if any other agency heads are being placed on probation so that they might also be observed for a period of several months to see if they are fit for the job and get along with Council. He added that this is a singling out of just the Chief if all agency heads aren't being placed on probation. He said they respectfully object to the imposed discipline and any attempt that Council may make to deprive the Chief of any of his rights and entitlements under the Resolution. -2- Council Special Meeting Minutes November 28, 1984 " . o o .. ' Consider Resolution 84-R-56 (Continued)- Attorney John Tanner (Continued) - Attorney Tanner noted that nobody likes to be threatened and this is not a threat but he advised Chief Betts that if the Council took action that depreciated the contract without cause and with- out written notice of the charges and would single him out that he'd recommend to him that he bring a civil rights suit not only against the City but against the individuals who might institute such action. He said Council should be apprised of that when they make up their minds. Councilman Asting said he made no motion but was expressing his feelings because he'd voted to hire him in July and he'd like to see the probation continue to make further evaluations of his performance of the job for which he was hired. Councilman Prater said in fairness to this new Council he thinks they should have the rest of his term to evaluate him as he hadn't done any checking before he was elected. He said he'd like the City Attorney to address them and let them know what they can and should do. Councilman Rotundo pointed out that section 3 that Attorney Tanner referred to is concerning termination and all the Council wants to do is extend the pro- bation to its original status of six months. Councilman Asting stated that they have no contract. Attorney Tanner said that was Councilman Asting's opinion but the Resolution constitutes a contract which is binding on the government of Edgewater. Attorney Tanner replied to Councilman Rotundo's statement by saying he didn't read that portion to indicate that Chief Betts or he thought this time or this hearing was meant as a termination hearing, and it was made clear that this wasn't a move to bring about termination. He added that he hoped the rumors were groundless and this isn't the beginning of a way to ease him out of office by putting him on probation and finding some nitpicking way to fire him. Mayor Baugh pointed out that on July 16th under Resolution 84-R-32 Chief Betts agreed to the six months' probation and the intent of Council is to continue his probation and give the new Council the opportunity to check on his per- formance. Attorney Tanner said the repealing resolution overcame that and the Mayor had indicated that there was no need to repeal previous resolutions as the new resolution would contain within it the language that would cancel or terminate the other. Mayor Baugh stated that was on the City Clerk's reso- lution. Attorney Tanner pointed out that it is the same procedure, and he read from the repealer section of the resolution. City Attorney Alvarez stated that they're jumping to conclusions and Council is just discussing the status of the Chief and no action has been taken and Council has not expressed a consensus. He added that when a consensus is expressed or action taken then they'll determine what course of action they'll take and what procedure to follow. Mr. Frank Roe, 2732 Juniper, said it's the wrong time to address Council on this matter because Council isn't trying to change anything, they are just trying to see that the previous Council's tying the hands of this Council is going to revert to the Chief's serving his probation. He said he's not heard of anybody who had the probationary period changed and it's set up for the purpose of judging a man at his job. He said Council's voting to re-enact the probation is not doing anything but to see that it's carried out and he thinks that's what the people want. Councilman Asting asked the City Attorney if a motion would be in order to extend or reinstate the probation period. City Attorney Alvarez said there is an issue of tying the hands of Council which is a moral, ethical issue that has caused some feelings, and a legal issue involved. He said his concern isn't with the fairness or ethics of actions of prior Councils but the legal effect it has. He added that they heard the argument that the Resolution is considered to be a contract and the ultimate judge will be a court of law and arguments can be made from both sides. He noted that a motion is always in order and the point is what is the intent and purpose and whatpi-'ocedures will be used to achieve the motion. -3- Council Special Meeting Minutes November 28, 1984 ". ~' - . . . o o ., City Attorney Alvarez said the due process is an issue and if Council wishes to place Chief Betts back on probation and a Resolution would be prepared, the issue would be is if Chief Betts,if he requests it,is entitled to written notice and a hearing, etc. He said a motion is in order and they'll have to take it from there. Councilman Asting moved that the City Attorney prepare a resolution restoring Chief Betts to the probation period to finish out his six months, that there be no loss in payor any other entitlement that he might have at this time. Councilman Rotundo seconded the motion. Motion CARRIED 5-0. Councilman Prater moved to adjourn. Councilman Inman seconded the motion. Meeting was adjourned at 7:35 P.M. Minutes submitted by: Lura Sue Koser ~ ~ r- THREE """" " ~tM-#~ -7..J ~?~- ~UN ILMAN - ZONE FOUR ~ ATTEST: ~e?~ / CITY CLERK ~ Approved thiS~~y of j) kffim~ , 1984. ~ =c> ~~ -4- Council Special Meeting Minutes November 28, 1984