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04-06-1988 - Workshop I , o 0 CITY COUNCIL OF EDGEWATER WORKSHOP APRIL 6, 1988 MINUTES Mayor Earl Baugh called the Workshop to order at 7:00 P.M. in the Community Center. He stated the Workshop was called regarding the City Attorney's contract, pending projects, and evaluation. ROLL CALL Mayor Earl Councilman Councilman Councilman Councilman Baugh Louis Rotundo Russell Prater Neil Asting 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 Also present was Mrs. Phyllis Soley, Secretary to City Attorney Alvarez. Dominick Fazzone, from the audience, called a point of order, and asked that everyone speak into the microphones so they could be heard. Councilman Asting stated that when he asked on Monday night for an explanation about the Police Chief dismissal, the City Attorney replied it was privileged conversation between an attorney and his client. He said he believes that's a misstatement and since the City pays for the item being discussed, they should be answered. He added there were three telephone calls made from the City Attorney's office to Orange City, rather than just two as he'd mentioned earlier. He stated there were 29 items assigned by the Council to the City Attorney for action and one goes back to 1984. He said another important matter is self- insurance and he talked with the insurance agent that day and he advised him he'd given the City Attorney's office a copy of the manual with his comments and suggestions for review by the City Attorney and that was the last he had anything to do with the manual. He stated the City Attorney was paid for proofreading and printout of the manual and they should have a copy of the manual as it's needed for guidelines for the self-insurance funds. He pointed out the City's in a precarious situation because they have no other insurance and insurance funds of about $600,000 won't be very much with today's lawsuits. He suggested they take action immediately. He added that the matter was in the hands of the City Attorney and they expected him to handle it and he was designated Chairman of the committee. Councilman Asting stated that the City Attorney charged for 555 hours of work for special projects and with 52 weeks in a year and working 40 hours a week, it comes out to 2,080, and if he charged Orange City for that same amount, plus 714 for Orange City for the bond issue, it totals 1,824 hours. He added it doesn't allow time for recreation, vacation, sickness, and private practice. He said he'll state his position concerning the City Attorney at the end of this meeting. Councilman Mitchum asked what period of time was covered with the 714 hours for Orange City for the bond issue. Councilman Asting replied he doesn't know. Councilman Mitchum asked if City Attorney Alvarez has those figures and over what period of time the 714 hours were charged. City Attorney Alvarez replied he doesn't know what 714 hours he's referring to and the Orange City bond issue seems to be the real issue. He said he'll address the 29 items briefly and he met with the City Manager and he thinks it's rather silly and they addressed the real issue and motivation behind it. He said it can be placed out there so the people of Edgewater can properly assess the rumors and misinformation and malicious statements that have been spread in this community. City Attorney Alvarez distributed to Council and the press a package pertaining to a similar type meeting that took place in 1984. He said he's not there to argue, chastise, or cut anyone down and these are valid questions that need to be answered and he's glad to be able to deal with them in public. o o City Attorney Alvarez reviewed when the meeting of December 20, 1984, took place and comments that were made regarding his continuing as City Attorney. He then read ..the. February 26, 1985, list called pending items from the City Attorney, and noted there were 10 items. He pointed out the list prepared in January, 1988 and the list prepared previously did not both have the one item dated August 6, 1984, for Tomoka Refuse franchise. He added that's the only item listed for 1984. He asked how it could be pending since August 6, 1984, when on February 26, 1985, it was not mentioned. Councilman Asting asked if he handled it to issue the new franchise to the company. City Attorney Alvarez asked if the list was prepared in good faith and why the current list includes an item not included in 1985. He said that he had thoroughly reviewed the situation with Tomoka Refuse and the U.S. Supreme Court had made some decisions on local governments regarding liability when franchises are exercised and were placed under the anit-trust laws of the Sherman Act and many municipalities went bankrupt facing litigation with franchises. He added that his advice to the City Administrator was not to issue a franchise and if they want to do business, that's fine, but not to have the City sign anything. He said he met with the owner on two occasions and his attorney and sent him a letter and they agreed if the law changes, they'll revisit the issue. Councilman Asting asked why Council wasn't made aware of it and City Attorney Alvarez replied that perhaps he doesn't recall it or perhaps the Administrator failed to make him aware of it. Councilman Asting asked about the October, 1985, project about pornography and adult book stores. City Attorney Alvarez asked how many projects were completed during this same period of time and Councilman Asting replied he doesn't recall and he doesn't think anyone else will as they handled a lot of ordinances and resolutions at Council meetings. City Attorney Alvarez said the allegations were given to him by someone else and those people who gave him the information and misled him did not give the complete picture and he's sorry he was misled. He pointed out his secretary keeps a log of everything they receive. He reviewed the way the log is maintained. He stated that approximately 588 assignments are logged for the four years with 29 listed as not being completed. He pointed out how past procedure has been to turn many items over to the City Attorney that were not of a legal nature. He stated that in 1984 he received 154 assign- ments; in 1985 there were 128; in 1986 there were 127; and in 1987 there were 178. He pointed out there was one item from 1984 versus 154 assignments. Councilman Asting stated that the point is that the assignments were given to him and they expect him to complete them in a reasonable time. City Attorney Alvarez asked what he means by completing them and Councilman Asting replied getting it back to Council. City Attorney Alvarez explained that some of these assignments were given to him and the intent was to shelve them. City Attorney Alvarez stated that regarding the 10/21/85 assignment on an ordinance on pornography and adult book stores, he drafted the ordinance and at the time, the Supreme Court of the State upheld the Daytona Beach Code pro- visions that's similar to ours, and he consulted with the then Chief Baugh and the ordinance on our books was upheld by implication so his advice was not to provoke the curiosity of those who want to challenge this legally with their battery of attorneys and we didn't have the funds at that time to engage the City in that kind of litigation. City Attorney Alvarez stated that the 11/7/85 assignment on the fence ordinance was drafted and it went back and forth and there was a question about how it would effect a certain business in town and the decision was made to have some kind of joint meeting or workshop and then the draft was given back to the City Attorney and Building Official to work on it. He said he did not know that it was anyone's intent to come back with anything but if they want to, he can come back with it. He added that as far as he's concerned, it was done and closed. Councilman Asting asked if Council agreed it was done or if he made that decision and City Attorney Alvarez replied that communications took place with regular meetings at City Hall with other members of the administration. -2- Council Workshop Minutes April 6, 1988 o o City Attorney Alvarez continued his review of the 29 items listed as pending. He stated that the 11/18/85 assignment to amend the Code to set guidelines for public notices and advertising time frames to comply with State Statutes resulted from a rezoning when a New Smyrna Beach attorney objected to it as our Code calls for 15 days and the Statutes call for 30 days advertising. He said when he reviewed the Statutes, he determined the Code was not wrong as the Statute calls for 30 days when the rezoning is initiated by the City. He added that he'd made that statement to the administration on several occasions. City Attorney Alvarez stated that the 3/3/86 assignment to amend the Code to be in compliance with State Statutes for zoning changes was because some of the secretaries to the Board were confused because they couldn't find anything to guide them regarding special exceptions and variances but he showed that there's a la-day public notice and posting and there was no need for this amendment. Councilman Asting questioned why the list passed out by the City Attorney was different from the one he'd received. City Attorney Alvarez replied that his list is from February 26, 1985, and it was discussed in March of 1985. There was discussion between Councilman Asting and City Attorney Alvarez regarding the origin of the prior list and who was present when it was discussed. He also noted that Councilman Inman had made a motion to accept the report at that time. City Attorney Alvarez stated that the 3/2/87 assignment regarding removing barri- cades in alleys throughout the City came from Planning and Zoning and Mayor Baugh when he was Chief of Police had an excellent idea to barricade the alley in the middle and local traffic can still use the alley but it's not wide enough to allow trucks. He said they discussed this at length and are reopening a can of worms they had closed. Councilman Asting stated there were 23 assigned projects in 1987 that weren't brought back to Council and he asked that he address only the ones he failed to act on. He pointed out he was supposed to be present at Board meetings to advise them and members of the Planning and Zoning Board can attest that there were several times the City Attorney didn't reply to their request for information or attendance at their meetings. City Attorney Alvarez asked what he did about that request and Councilman Asting replied he passed it on to the City Adminis- trator and he's sure it was passed on to the City Attorney. City Attorney Alvarez stated the ordinance was prepared regarding the outdoor display and storage. His Secretary, Phyllis Soley, explained that it was held temporarily because Planning and Zoning was being disbanded and it was waiting for the Land Development and Regulatory Agency. There was discussion about when the assignment was given and when the board changes took place. Mr. Kelly read from Resolution 82-R-54, Exhibit 1, paragraph 2, regarding the Attorney's agreement to obligate himself under certain conditions. Mayor Baugh pointed out that the Attorney had agreed to meet with the Planning and Zoning Board on a regular basis. City Attorney Alvarez explained that in October or November there was such confusion regarding certain items coming before the Board and since Lynne Plaskett was dismissed, he volunteered on a last minute basis to attend the Board meetings. Councilman Asting asked if he'd attended and City Attorney Alvarez suggested they look at the Board minutes. Mr. Kelly stated that the agreement spells out his duties and if it was Council's intent to change the duties, it should have been an amendment to the resolution. Councilman Asting stated it wasn't the intent of Council and the City Attorney volunteered. City Attorney Alvarez pointed out that was the key word. There was brief discussion about the agreement to attend the meetings. City Attorney Alvarez asked them to look at the number of meetings he attended and the number of issues resolved and he attended meetings where important issues were discussed. Mayor Baugh noted that at one meeting they tabled 5 items because he wasn't there. City Attorney Alvarez explained that he was excused and they tabled them to the next meeting. -3- Council Workshop Minutes April 6, 1988 o o City Attorney Alvarez stated that the special permit for the recycling yard is an open assignment from September, 1987 and it will have to go back to the Land Development and Regulatory Agency to consider whether they want those in the City. He said he put together an agreement exacting conditions from the owner in exchange for which the Council would grant a special permit. He added that the agreement was reviewed by the Building Official and Fire Inspector to see that it covered all points. Mayor Baugh asked if this is the one on Old County Road and City Attorney Alvarez replied yes. Mayor Baugh stated they're in business now and he'd brought it to the Attorney's attention and asked him what to do and was told to close it down but they aren't closed down. City Attorney Alvarez noted it's a pending item and Council should look at it. City Attorney Alvarez stated the ordinance on Land Development and Regulatory has been done. City Attorney Alvarez stated that Coronado Paint Company's request to resurface was tabled because Mayor Baugh was going to meet with the owner. Mayor Baugh questioned who David Dill is that he was to meet with. City Attorney Alvarez stated the bike path on Indian River Boulevard is an open assignment and it's being worked on now and the latest correspondence from the owner was in December. He asked Councilman Rotundo if he's satisfied with this since it's his assignment. Councilman Rotundo replied that he received the communication that they're moving to another office. City Attorney Alvarez stated that the ordinance on gas pumps is a completed assignment and it went back and forth from Planning and Zoning and to Mrs. Wadsworth and the ordinance is done. City Attorney Alvarez stated the forfeiture for the Police Department is complete in terms of preparing the petitions and they need to file it. City Attorney Alvarez stated that the 11/12/87 assignment regarding wording for an amendment to interior renovations is pending before the Land Development and Regulatory Agency and the issue is not the wording as it exists in the Code now but the Board was upset because the Building Official issued permits for renovation and they wanted to stop it. He questioned if they should continue to amend the Code to cover administrative failures. I City Attorney Alvarez stated the resolution for Department Head increases was subject to another meeting between the Council and Department Heads and the meeting is still pending. He noted they wanted a meeting because Council didn't have the proper evaluations at the time. Mayor Baugh agreed that was correct. City Attorney Alvarez stated there's nothing for him to do until the meeting is held. City Attorney Alvarez stated that the Industrial Development Board By-Laws was covered and Falcon Avenue was resolved on the floor with the entrance to the shopping center. City Attorney Alvarez stated there were some discrepancies at the bid opening for the newsletter and it was decided to get with the two individuals and that was during the hectic time when things were changing in the City. He suggested if they want to delegate it to the City Manager, he can review it and see if the proposals are still open. City Attorney Alvarez stated that the Planning and Zoning recommendation to permit unmanned car washes is a closed assignment and the resolution for two appointments to the Library Board was completed. City Attorney Alvarez stated the self-insurance items are not assignments but claims that are open and will remain open for at least six months or more if they go to litigation and the law allows the six months before a determination has to be made to deny or pay and they should take advantage of it. He said they're ongoing open claims. Councilman Asting asked how they'll deal with them and City Attorney Alvarez replied that as soon as the Manager appoints an insurance representative, and after the six months is over, they'll either deny or pay. -4- Council Workshop Minutes April 6, 1988 o o Councilman Asting asked if the manual that specifies which liabilities are covered is in his offic~. City Attorney Alvarez asked who had requested it and when and Councilman Asting replied that he wants it as soon as possible. Councilman Asting noted that the City Attorney was the Chairman and City Attorney Alvarez replied he was not and was just a legal advisor of the program and he doesn't want to manage this City or its departments. He said he'd provide the draft manual but they must be careful not to use it or release it until it's in final form. Tom Sheridan asked if it's the manual they paid $10,000 to the insurance agent to write as they have a safety manual that he gave to the City. Councilman Mitchum asked if Gary Schad was supposed to write the manual and City Attorney Alvarez replied yes as he's not an insurance agent. Councilman Asting said he did it and turned it over to the City Attorney for review and left the manual with him. Councilman Mitchum asked if he charged 9 hours to review it and City Attorney Alvarez replied the manual was at least 90 pages and it was not printed by a company. Councilman Asting said he assumed it was a finished product. There was discussion about the printing of the manual and if the $10,000 was actually paid to write the manual and set up the program. City Attorney Alvarez noted that under Miscellaneous the Alice Murphy assign- ment was done in September with Lynne Plaskett. City Attorney Alvarez stated the tree preservation ordinance from Planning and Zoning was not even an assignment. He said the Winn-Dixie indemnity agreement was requested from the City and they aren't going to do it. He said the review of the Florida Power & Light indemnity agreement regarding the existing fence was done and was done with an advertisement. City Attorney Alvarez stated the Massey Enterprises and John Street crossing was the attorney told them to get the crossing they want or they'll take the deeds back and we won't put in the crossing until they know where it's supposed to go. City Attorney Alvarez stated that Councilman Rotundo requested vehicle licensing as a revenue source. Councilman Rotundo explained he brought a manual back from Illinois and he asked the City Clerk about it and that was all he knew. City Attorney Alvarez said it went to the Florida League of Cities for an opinion because the laws are different in the two states and they haven't received the opinion yet. City Attorney Alvarez said the airport hazard zone is part of the hangers and that needs to be addressed but he doesn't know by whom. He said he was asked to review the master cable TV proposal but he advised the administration that the one they have now is a fine one and it cost a lot of time for meetings and he doesn't think it should be changed. Councilman Asting asked for a detailed explanation of the meeting regarding the dismissal of the Police Chief as there was no attorney-client privilege and he wants to hear the details. City Attorney Alvarez said he stated his position on the matter and that was his last word. Councilman Asting again said there is no attorney-client privilege that prohibits him from speaking on this matter. City Attorney Alvarez questioned where he got that opinion and Councilman Asting replied the State Attorney's office. City Attorney Alvarez asked if he discussed this with the State Attorney's office and Councilman Asting replied he just wanted to know if there's an attorney-client privilege when both people involved were City officials. -5- Council Workshop Minutes April 6, 1988 " ' '-> o City Attorney Alvarez stated he's asking Council, as he did in 1984, if they're satisfied with the report and the situation. Councilman Rotundo replied yes; Councilman Prater replied yes, with the report just now he's satisfied; Mayor Baugh replied he has no problem with the 29 items; Councilman Asting replied he is not satisfied; Councilman Mitchum replied he's satisfied. Mayor Baugh asked if Council wanted to hear from the audience. Councilman Rotundo replied he had no objection; Councilman Prater replied he doesn't care; Councilman Asting replied he's in the minority; Councilman Mitchum replied no, he doesn't want to hear from them; and Mayor Baugh said he'd like to hear from the audience. He again asked Councilman Asting if he wanted to hear from them and Councilman Asting replied no, he guesses not. Councilman Mitchum called a point of order that the conversation with the City Attorney is on the agenda and it's not an open topic for discussion. Mayor Baugh noted there were 3 items on the agenda and he advised the public that he'd limit them to 3 minutes. Frank Roe, 2732 Juniper Drive, asked Council to consider putting in the sewers first on the dirt roads in Florida Shores. Mayor Baugh asked what that had to do with this agenda and Mr. Roe replied it's pending projects. Mayor Baugh clarified it's pending projects of the City Attorney. Frank Opal stated people are choosing sides for running for election. Mayor Baugh asked that he keep his comments to what's on the agenda. Mr. Opal said there are two cliques and now the gun is out for the City Attorney. John Siburn, Connecticut Avenue, stated there was a trap laid for the City Attorney. He asked each person to bring a reference from where they were last. He said City Attorney Alvarez is a fine gentleman and he did business with him and he wishes the Council thought as much of the City as he does. John Scherz, Egret Court, said the one person who's done anything for him was City Attorney Alvarez and he sat in on boards when he attended to help resolve problems. He said he feels they hired a competent man for City Manager and resolved the problem with the City Administration but the bickering has to stop. He asked that their Councilman spend as much time working for his constituents as in gathering information against the City Attorney. He referred to a previous incident when he was referred to as an agitator. He suggested they look at all Department Heads. Tom Sheridan, Florida Shores, stated he attended meetings of the insurance fund and there was to be a safety inspection of all facilities of the City and he'sJ not found a document that shows that was done. He added one was to have been made by the City Administrator and one by Gary Schad but nobody knows anything about the documents. He added they deserve more than that for $10,000. He said the City Attorney was accused of not attending a Board meeting but perhaps be was out of town and didn't have the availability at the City's expense of an airplane and a City Police car. He stated that Jose' Alvarez has been City Attorney for 6 years and has drawn up about 800 instruments and 30 items were brought up tonight which is still an efficiency ratio of 96~%. He said there's a conflict of personalities and they don't have the City's interests at heart. He referred to the change in government and lifesytles and growth. Mayor Baugh asked if Mr. Sheridan feels he doesn't have the interest at heart. Mr. Sheridan replied that if the shoe fits, wear it, and if the rest of the elected officials took as much interest in the City's welfare as the City Attorney does, they wouldn't have had this meeting. Dominick Fazzone, 302 Paradise Lane, stated he's sure the Mayor and Councilmen have the best interest of the City at heart and he's asked each one for advice and they've given it to him. He referred to a Board of Adjustment decision he was involved with 3~ or 4 years ago regarding granting a variance when the City Attorney assisted in overturning the decision. He added that he's seen him at other board meetings also and these weren't incldued in the 588 items. He referred to the recent decline in crime. He said the citizens have a good Council and a good City Attorney to help them. -6- Council Workshop Minutes April 6, 1988 . 1 ~4 '-> o Bill Klein, 2910 Needle Palm, thanked City Attorney Alvarez for the many dollars he's saved the City through lawsuits. He referred to Council's spending $170,000 over two years that wasn't necessary. He reviewed the hours spent by Planning and Zoning and Board of Adjustment regarding outdoor displays in an effort to try to clean up Route 1. He reviewed the background of the subject and noted that Council failed to take action on it. He stated that he brought out many illegal acts that are being performed in this City and Council ignored them and they should be interested enough to bring up some of the things. He stated that people are swimming at the park and they don't have a lifeguard and they're laying themselves wide open for a tremendous lawsuit. Mayor Baugh asked that he stick with the subject. Mr. Klein said he's referring to se1f- insurance, and there are some places posted with "no swimming" and some are not and it needs to be taken care of. He said there are many pertinent problems that need to be taken care of rather than the bickering they're doing. Mayor Baugh will be in working on wit h him Henry Scherz, 1011 Egret Court, asked the status of Lynne Plaskett. replied that has nothing to do with this agenda. Mr. Scherz said it the hands of the City Attorney. Mayor Baugh noted that Mr. Kelly is it now. After brief discussion, Mr. Kelly asked Mr. Scherz to speak after the meeting about it. Councilman Asting stated his position concerning the City Attorney is no confidence. Mayor Baugh asked about the billings as some conferences in the past with the Mayor and Council were at no charge and then about 6 months ago that changed. City Attorney Alvarez replied that it depends on the nature of the topic and if the meeting or conference pertained to an ordinance or resolution or regular routine matters, but the last 6 months have involved very controversial specific items not covered by the regular engagement. He added that $35 an hour doesn't seem to be unreasonable as he pays his secretary and has overhead. Mayor Baugh stated he appreciates the work he's done and hundreds of items he completed over the last 4 years, and he spoke with him about the 6 months in his contract because he's thinking of a full time City Attorney to be looked at, and after looking at the case load he feels it's enough to look at in the next budget. He added that if Council wants to appoint him as that attorney, he has no problem with it. City Attorney Alvarez stated that if it's to the benefit of the people to go to a full time City Attorney, he'll be the first to lead the charge. He added that the question has to be looked at factually. He referred to the Growth Management legislation with a 1990 compliance. He said he took it upon himself to get involved with it as well as many other items and many of the items were in the nature of administrative. He pointed out that with a professional City Manager, the role of City Attorney should be reduced by more than half, and he doesn't think the facts will substantiate the budget of a full time attorney when you consider all the costs involved. City Attorney Alvarez read a letter dated September 4, 1984, referring to a previous investigation for the City of Edgewater and rumors and allegations at that time. Mayor Baugh requested a motion to adjourn. Councilman Mitchum so moved. Councilman Prater seconded the motion. Workshop was adjourned at 8:37 P.M. Minutes submitted by: Lura Sue Koser ATTEST: -~~~ TING CI CLERK Approved this ~day of t: f?:-~' MAYR CO -7- Council Workshop Minutes April 6, 1988 p ~ &:..~ /.,c-_5'