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08-31-1988 - Regular o o CITY COUNCIL OF EDGEWATER REGULAR MEETING AUGUST 31, 1988 MINUTES CALL TO ORDER Mayor Baugh called the meeting to order at 7:00 PM in the Community Center. ROLL CALL Mayor Earl Baugh Councilman Louis Rotundo Councilman Russell Prater Councilman Neil Asting Councilman David Mitchum Present Present Present Present Present City Attorney Jose' Alvarez Interim City Manager Dennis Kelly Acting City Clerk Susan Wadsworth Chief Lawrence Schumaker Present Present Present Present INVOCATION, PLEDGE OF ALLEGIANCE Reverend Harvey Hardin, retired Methodist minister, delivered the invocation. There was a pledge of allegiance to the Flag. APPROVAL OF MINUTES Budget Workshop of August 11, 1988 - Councilman Rotundo moved they accept these minutes. Councilman Prater seconded the motion. Motion CARRIED 5-0. Regular Meeting of August 15, 1988 - Councilman Asting moved they adopt the minutes. Councilman Prater seconded the motion. Motion CARRIED 5-0. CONSENT AGENDA - Screening Committee recommendations for appointments to Industrial Development Board, Citizen Code Enforcement Board, and Police Retirement Plan Board of Trustees (Resolutions attached), Merit Board recommendation re: vacation leave, Request to vacate easement, 1002 Beulah Drive, Traffic light, U.S.l and Roberts Road, and U.S. 1 speed limit. Mr. Kelly explained in detail the types of items on the consent agendas, noting that any item can be pulled off at the request of any Council member. He explained the procedure for voting. With no comments from Council to remove any items from the consent agenda, Mayor Baugh asked for a motion to close the consent agenda. Councilman Asting so moved. Councilman Prater seconded the motion. Motion CARRIED 5-0. Mayor Baugh requested a motion to accept the consent agenda as presented. Councilman Asting so moved. Councilman Rotundo seconded the motion. Motion CARRIED 5-0. ORDINANCES AND PUBLIC HEARINGS First reading - Ord. 88-0-20 Referendum ordinance City Manager voter performance approval - City Attorney Alvarez read this Ordinance. ORD. 88-0-20 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA, AMENDING THE CHARTER BY RESUBMITTING TO THE VOTERS THE TWO YEAR CITY MANAGERS VOTERS PERFORMANCE APPROVAL; CONTAINING A REPEALER PROVISION, A SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE DATE. He stated the question will appear on the ballot as "Should the City Managers voters performance approval every two years be rescinded?'~ with yes for approval and no against approval. Councilman Mitchum moved they adopt Ordinance 88-0-20. Councilman Rotundo seconded the motion. Motion CARRIED 4-1. Councilman Prater voted NO. UNFINISHED BUSINESS There was no Unfinished Business for this agenda. NEW BUSINESS City Manager screening committee recommendations - Mr. Kelly stated that Mr. Pete Knowles, Chairman of the City Manager Screening Committee, would present his report to Council. He asked to be excused from the meeting for this portion of the agenda so that it could be discussed fre~ly since he was one of those recommended by the Committee. Mayor Baugh agreed he could be excused. (.) o NEW BUSINESS (Continued) City Manager screening committee recommendations (Cont'd) - Mr.Knowles stated that Phil Penland, President of FCCMA, apointed him, Bernard Murphy of Ormond Beach, and Richard Quigley,Deputy City Manager of Daytona Beach, to the screening committee and the three of them met in City Hall on August 19th and reviewed all 70 applications. He pointed out that the Council is not bound to the 11 they short listed. and they need to decide how many to interview. He suggested they interview one a day and that the candidate meet with Department Heads and the Interim City Manager and perhaps take him to lunch. He stated that travel and expenses are normally paid for the applicant, but if they invite all the top 5, it should be less than $2,000. He suggested they send letters to those not short listed and then another letter to those top 11. Mayor Baugh asked Sue Koser to do this and no Council member objected. Mr. Knowles stated that most of the applicants will request an employment contract but Council should dictate terms and they sometimes have 6 months severance pay, but it's not normal, and he had 90 days with Sanford. He noted that they'll expect hospitalization, a retirement plan, and other benefits. Councilman Rotundo moved they accept the recommendation of Mr. Knowles. Councilman Prater seconded the motion. Motion CARRIED 5-0. Councilman Mitchum asked that they get the application copies as soon as possible. There was discussion regarding the procedure to determine how many would be interviewed and the date for the interviews. Mr. Knowles suggested that after the workshop the Mayor should call the locale where the individual last worked and ask the Mayor or City Clerk for the work record, acceptability, and tenure of the application and also call the editor of their local newspaper for an opinion to get a public image. He noted a spouse may want to come along. Councilman Asting asked if any of the applicants are presently employed and Mr. Knowles replied yes, most of them. After discussion, it was agreed to meet on Friday, September 9th, at 6:00 P.M. Mayor Baugh asked Mr. Knowles to attend also and Mr. Knowles agreed. Councilman Rotundo asked if Mr. Knowles would be compen- sated and Mayor Baugh explained the City Managers Association will reimburse him. Request for reimbursement of legal fees, Wargo/Klein vs Rotundo - John Siburn, Connecticut Avenue, called a point of order. asking if Councilman Rotundo could vote on this since it's private gain and conflict of interest. City Attorney Alvarez replied that he discussed this at length with Councilman Rotundo and he's fully advised of the law in this area. Mr. Kelly read his August 25, 1988, Request for Council Action which recommended an Attorney General's opinion. and noted that the fiscal impact figure should be $4,995.15. City Attorney Alvarez asked if this is for costs and attorney fees and Mr. Kelly replied the total cost of $4,995.15. City Attorney Alvarez pointed out that the question of fact is to be answered by the City Council. He said it makes no difference if it's civil or criminal. Mayor Baugh asked if an opinion from the Attorney General would be in order and City Attorney Alvarez replied that the opinions are recognized as watch dogs of public laws, such as Sunshine Laws. Mayor Baugh called a recess at this time, 7:54 P.M., and called the meeting back to order at 7:59 P.M. City Attorney Alvarez stated that expenditures of public funds are one of the most delicate areas of government and when public laws are involved, the opinions carry a lot of weight. He read "the public officer is entitled to a defense at the expense of the public in defending against unfounded allegations of official misconduct arising from performance of official duties while serving the public purpose." He reviewed a previous case regarding the Mayor of the City of Sunrise which involved a felony indictment. and other cases in previous years. Mayor Baugh asked the length of time to have the opinion and City Attorney Alvarez replied it's about 30-60 days. Alice Murphy, 230 N. Riverside Drive, stated the taxpayers would have to pay for this if it's approved and the City wasn't involved, but it's between Mr. Rotundo and private citizens. She noted that employees were allowed to go on City time also. Councilman Mitchum moved they follow the recommendation of the City Manager. Councilman Asting seconded the motion. Councilman Prater asked if they'd negotiate with Attorney Woods if it comes back and Mayor Baugh replied he expects to pay for it if he hires someone to do a job. Motion CARRIED 3-1. Councilman Rotundo abstained from voting and Councilman Prater voted NO. -2- Council Regular Meeting Minutes August 31, 1988 o o NEW BUSINESS (Continued) Land parcels/Community Development Block Grant program - Mr. Kelly read his August 26, 1988, Request for Council Action with a recommendation to negotiate a more reasonable price for the property and bring the recommendation back to Council. He pointed out there will be stringent Federal regulations on whatever land they acquire. Jack Corder, Assistant Recreation Director/Buildings & Grounds Maintenance Superintendent, advised the asking price is $27,000. and the other property near the old Winn-Dixie was $55,000. Mayor Baugh asked if this will come from recreation impact fees and Mr. Kelly replied they have to pro rate fees on acquisition. There was discussion of the size and proposed uses. Councilman Mitchum suggested they amend the application for any left over money. Councilman Rotundo moved they proceed in purchasing this property and negotiate. Councilman Asting seconded the motion. Motion CARRIED 5-0. Wildwood Subdivision Maintenance Bond, Unit II - Mr. Kelly read his August 25, 1988, report. He pointed out that he'd received a letter that day from Briley, Wild and they did not accept the streets in final stage. He suggested Council replace the money, and if the streets are acceptable in Unit II, then release the bond, or if not, bring them up to standard. He pointed out the subdivision was started prior to the adoption of the City's subdivision regulations in 1979 and maintenance bonds were not required, and Units I and III do not have bonds posted. Gerard Ferrara, City Engineer, reviewed his inspection and correspondence from 1985. Mayor Baugh asked if the bond was used properly to make improvements in Phase II. Mr. Ferrara replied that they don't normally use money from a bond from one section in another section. There was discussion about an inspection and tests to be performed by Mr. Ferrara on Phase II. Mr. Kelly pointed out that if repair work needs to be done, then they use that $12,000. which is for base failure and not the cap, and then start the clock for the five years. There was discussion about why Phases I and III did not have bonds. Ward Towers, Towers Construction Co., stated it's been six years now and it was accepted to receive the building permits, and Phase II doesn't have a blemish in the top or base. Mayor Baugh suggested the inspection be done by Mr. Ferrara right away and then the money should be turned back to Mr. Towers if the tests are okay. There was no objection from Council. Mr. Kelly asked if the intent is to charge the City Engineer with doing a visual inspection of Unit II and based on his recommendation as to whether the streets are acceptable, then waive the 5 year agreement. Harry Ryan, from the audience, asked if the bonds were returned to the contractor and Mayor Baugh replied it was $32,000. and they returned $20,000. to the contractor. Mr. Kelly suggested that their motion include reimbursing that bond money by the $9,500.f Councilman Mitchum moved they have Gerry Ferrara do that and report back to the City Manager and bring that back in report format the next Council meeting, addressing these other things at that time, but the first priority is to find out if the streets are good. Councilman Prater seconded the motion. Motion CARRIED 5-0. There was discussion regarding the time frame as Mr. Ferrara advised he would be away from the office on the date of the next Council meeting. Councilman Mitchum moved to amend his motion to October 3rd. Councilman Asting seconded the amend- ment. Motion CARRIED 5-0. Future Land Use Amendments Comprehensive Plan - Mr. Kelly read his August 26, 1988, Request for Council Action, and pointed out this is a pro forma step. Councilman Asting moved they accept the City Manager's recommendation regarding the recommendation of the Land Development and Regulatory Agency. Councilman Mitchum seconded the motion. Motion CARRIED 5-0. Short List of Consultants for certain Comprehensive Plan elements - Mr. Kelly read his August 25, 1988, Request for Council Action. Councilman Prater moved they grant his request of Alternative 1. Councilman Rotundo seconded the motion. Motion CARRIED 5-0. -3- Council Regular Meeting Minutes August 31, 1988 o Q CITIZEN COMMENTS Joe D. Martin re: draft residency ordinance - Joe Martin, 6 Laughing Gull Lane, stated he presented a draft ordinance that doesn't have a waiver but does have an extension of time to comply with an 18 month mandatory compli- ance and Council could grant extensions. He asked Council to submit this ordinance to the Attorney and bring it up for consideration at a future time. Councilman Mitchum reviewed his previous efforts to have the Department Heads grandfathered in and asked that a Council member who voted against him make a motion to reconsider. He suggested they send Mr. Martin's ordinance to the Attorney. Liz Scavarda, 107 Marion Avenue, stated it's unconstitutional to force someone to live in the place they work and the residency requirement shouldn't have been on the ballot to start with and it was a political smoke screen to get rid of some people they didn't want. Councilman Asting moved that the material turned over to the Council by Mr. Martin be given to the City Attorney to redraft Ordinance 88-0-16. Councilman Rotundo seconded the motion. Councilman Mitchum questioned this procedure and Councilman Asting replied it's submitted by a citizen and not prepared by the legal advisor. City Attorney Alvarez stated that Councilman Asting's motion brings the matter back for Council's action and if the majority of the Council follows with the motion, the last motion made had died, so this will be a new motion, whether a motion to reconsider or a motion based on the initiative taken by the citizen, and format should not prevail over substance. Motion CARRIED 4-1. Councilman Prater voted NO. Mel Wargo, Wildwood, asked Mr. Kelly if he'd considered Ordinance 400 as he'd understood that was passed by a referendum vote and that two-thirds of the bond holders have to concur with anything done with that money. Mr. Kelly pointed out that comments have to be taken up with Council, but you can pledge money to a fund but you don't have to keep the money in that fund as long as it's pledged for it. Harold Hardester, Pelican Cove West, questioned if Councilman Rotundo had been serving in his official capacity when he was leaving the building. City Attorney Alvarez replied the City Council as a collective body will have to address that, and it's a question of fact and a court's interpretation and the courts have ruled. Mr. Hardester questioned if he was serving any public purpose at the time and City Attorney Alvarez read from other Attorney General findings. Mr. Hardester asked if the City Council has to made that determination and City Attorney Alvarez replied the Council opted to make that determination pending the opinion from the Attorney General. Dom Fazzone, 302 Paradise Lane, expressed disappointment with the consent agenda and with the fact that the State Attorney made the decision that Councilman Rotundo should be brought up on charges with what he considered to be sufficient evidence. He referred to the lengthy trial and stated that Councilman Rotundo should be reimbursed for all legal fees now. He then asked that they find out how to get reimbursement for the mistake made by the State. Norm Billups, 1860 Pine Tree Drive, stated that Councilman Rotundo could have apologized and everything would have been settled. COUNCIL/OFFICERS REPORTS City Attorney - Report on dismissal of recreational impact fee lawsuit - City Attorney Alvarez stated he'd filed a motion to dismiss and it was held July 21st and on August 18th the judge dismissed the complaint on the basis that all three counts of the complaint had failed to state. the cause of action as required by law. He said they may draft a new complaint and refile. He suggested that due to the expense of litigation, this is the opportunity to try to resolve the matter, and he asked Council give the City Manager and him the direction to try to resolve this before a new lawsuit develops, if it does develop. Mayor Baugh asked if Mr. Kelly had met with them and Mr. Kelly replied no. Councilman Mitchum moved that the City Manager and City Attorney approach them from that standpoint and find out exactly why that suit was brought and see what we can do, and we don't have to commit to anything but get the facts and bring it back to Council. Councilman Prater seconded the motion. Motion CARRIED 5-0. City Attorney Alvarez said he'd have to proceed to defend if a second complaint is filed and there will be expert witness testimonies required. -4- Council Regular Meeting Minutes August 31, 1988 o <.) COUNCIL/OFFICERS REPORTS (Continued) City Attorney (Continued) - City Attorney Alvarez stated that whether or not they request an opinion from the Attorney General, this Council will have to answer the question about what happened and if it's within a Council- man's duties and if a public purpose was being served. He explained that what happened is what the jury believed and he'll have to order a transcript portion that contains Councilman Rotundo's testimony. City Attorney Alvarez then spoke on the residency ordinance, pointing out they must take into account the decisions throughout the country on the different ordinances of this type and the challenges. He said it must be flexible and present Department Heads as well as future Department Heads have the right to petition for a waiver and Council reserves the authority to grant a waiver. He reviewed the waiver request procedure and noted it should not be taken away. He suggested they could adopt a certain period of time to comply and after that time no extension would be granted. He suggested the notice of violation from the Manager could be to the City Clerk as the keeper of the records. He asked for Council direction on language in the ordinance. Mayor Baugh asked about the waiver provision and Councilman Mitchum moved to do so. Councilman Asting seconded the motion. Motion CARRIED 5-0. Mayor Baugh asked about language specifically exempting present Department Heads. Councilman Mitchum so moved. Councilman Asting seconded the motion. Motion CARRIED 4-1. Councilman Prater voted NO. City Attorney Alvarez asked if the ordinance should apply to probationary employees and should it count toward the residency. Councilman Mitchum replied they shouldn't be required to move in during the pro- bation and City Attorney Alvarez agreed. Councilman Mitchum so moved. Councilman Asting seconded the motion. Motion CARRIED 5-0. City Attorney Alvarez stated that Council may grant an extension after a hearing if Council finds it's in the best public interest to grant such an extension, but in no case should it extend 18 months from the date of employment. Councilman Mitchum so moved. Councilman Asting seconded the motion. Motion CARRIED 5-0. City Manager - report on skateboard arena - Mr. Kelly stated they withdrew this subject because of the cost for liability insurance and the City of South Daytona putting in a park, but they are awaiting information from Virginia Beach. City Manager - report on remaining acreage at Whistle Stop Park - Mr. Kelly explained they're looking at the prospect of the 25 acres at the school before they commit to placing the fields at Whistle Stop. City Manager - report on Veterans Parks - Mr. Kelly stated they received approval and are awaiting the paper work and a lease agreement will be negotiated to be signed by DNR for a fishing pier and it will come back for final approval. Mr. Kelly announced the public hearing for the budget is September 7, 1988, at 7:00 PM in the Community Center. City Council - There were no reports at this time. QUESTIONS FROM PRESS There were no questions from the press. ADJOURN Mayor Baugh requested a motion to adjourn. Councilman Mitchum so moved. Councilman Rotundo seconded the motion. Meeting was adjourned at 9:56 P.M. Minutes submitted by: Lura Sue Koser ~ 1; ACTING CI~ CLERK APP7ed this I f day of 7~J ,198 r . ~~ ~/- MAYOR I COU7J;T~ COUNCILMAN - ZONE FOUR ~-'<:> ~3 / -5- Council Regular Meeting Minutes August 31, 1988 . FORM 81 MEM~lANDUM OFVOTIN(~ONFLlCT FOR COUNTY. MUNICIPA . AND 'OTHER' LOCA[ PUBLIC OFFICERS tASl NAMl'-F1RSl NAMI:-MII>l>LE NAME NAME OF BOARD. COLJNClL."COMMISSION. AtlTHORITY. OR COMMITTEE Rotundo Louis J. Council'Member Zone 1 MAILING Al>l>IU:::SS THE BOARl>, COUNCil" COMMISSION. AlJTHORITY. OR COMMITTEE ON WHICH I SERVE IS A UNIl OF: 122 Dixwood 'Xcln . , COUNn : : OTHER LOCAL AGENCY nn COUNTY NAME OF POLITICAL SUBDIVISION: Edgewater Volusia City of Edgewater (Municipality) DATE ON WHICH von OCCURREl> MY POSITION IS: August 31, 1988 X ELECTIV!: , APPOINTIVE WHO MUST FILE FORM 88 This form is for use by any person serving at the county, city. or other local level of government on an appointed or elected board. council. commission. authority. or committee. It applies equally to members of advisory and non-advisory bodies who are presented with a voting connict of interest under Section 112.3143, Florida Statutes. The requirements of this law are mandatory; although the use of this particular form is not required by law, you are encouraged to use it in making the disclosure required by law. Your responsibilities under the law when faced with a measure in which you have a connict of interest will vary greatly depending on whether you hold an elective or appointive position. For this reason. please pay close attention to the instructions on this form before completing the reverse side and filing the form. INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES ELECTED OFFICERS: A person holding elective county. municipal. or other local public office MUST ABSTAIN from voting on a measure which inures to his special private gain, Each local officer also is prohibited from knowingly voting on a measure which inures to the special gain of a principal (other than a government agency) by whom he is retained. In either case, you should disclose the connict: PRIOR TO THE VOTE BEING TAKEN by'publicly stating to the assembly the nature of your interest in the measure on which you are abstaining from voting; and WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the minutes of the meeting. who should incorporate' the form in the minutes, APPOl~TED OfFICERS: A person holding appointive county. municipal. or other local public office MUST ABSTAIN from voting on a measure which inures to his special private gain. Each local officer also is prohibited from knowingly voting on a measure which inures to the special gain of a principal (other than a government agency) by whom he is retained. A person holding an appointive local office otherwise may participate in a matter in which he has a connict of interest. but must disclose the nature of the connict before making any attempt to influence the decision by oral or written communication, whether made by the officer or at his direction. IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE TAKEN: . You should complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the minutes of the meeting. who will incorporate the form in the minutes. . A copy of the form should be provided immediately to the other members of the agency. . The form sho'uld be read publicly at the meeting prior to consideration of the matter in which you have a connict of interest. PAG[ I . . . . r~ ~~ iF YOU MAKE NO ATTEMPT TO INFbtNCE THE DECISION EXCEPT BY DIS~SION OR VOTE AT THE MEETING: . You should disclose orally the nature of your connict in the measure before participating. . You should complete the form and file it within IS days after the vote occurs with the person responsible for recording the minutes of the meeting, who should incorporate the form in the minutes. DISCLOSURE OF STATE OFFICER'S INTEREST I. . hereby disclose that on ~ -J( , 19 fF' : (a) A measure ~ r will come before my agency which (check one) ~d '1" _ mure to my specla private gam; or _ inured to the special gain of . by whom I am retained. (~) The measure before my agency and the nature of my interest in the measure is as follows: ~rff Date Filed /ffV &I!- ( NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES ~1I2.3J7 (1985), A FAILURE TO MAKE ANY REQUrRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAYBE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY. REPRIMAND. OR A CIVIL PENALTY NOT TO EXCEED 55.000. 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