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HomeMy WebLinkAboutDocumentation_Workshop_Tab 04_4/3/2023Agenda Item #4. Workshop STAFF MEMO Meeting: Workshop - Apr 03 2023 Staff Contact: Jeremy Allen, Village Manager Department: Manager Discussion On Council -Manager Form Of Government Legal Update and Upcoming Village C Reorganization Each year the Legal Department sends out a Legal Update outlining the Council -Manager form of government. This document has been included for discussion and questions regarding the rules governing the form of government. In addition, at the Village Council workshop prior to the annual election of the Mayor and Vice -Mayor the Legal Department outlines the process for election of Mayor and Vice -Mayor. Village Charter Section 2.06: The Village Council at its first regular meeting subsequent to the date of the annual election of Village Councilmembers shall appoint one of its members as and to be Mayor of said municipality and another of its members as and to be Vice -Mayor. Said officers shall serve at the pleasure of the Council for one (1) year and/or until a successor shall be appointed and qualified. The Mayor shall preside at all meetings; shall be recognized by the courts for the purpose of military low, • and shall, execute all instruments to which the Village is a party, as approved by vote of the Village Council, unless otherwise provided hereby or by ordinance; but the Mayor shall have no administrative duties. The Vice -Mayor shall act as Mayor during the absence or disability of the Mayor. This document and any attachments may be reproduced upon request in an alternative format by completing our Accessibility Feedback Form, sending an e-mail to the Village Clerk or calling 561-768- 0443. PROJECT NAME: NA Proposed: NA PROJECTED TOTAL: NA BUDGET: NA ENCUMBERED: NA Legal Update Teguesta 2023 FINAL Projected Remaining: NA Page 64 of 70 Agenda Item #4. Law DAvis AssoCIATESY.A. Keith W. Davis, Esq. Florida Bar Board Certified Attorney in City, County and Local Government Email: keith@davislawteam.com MEMORANDUM TO: Mayor, Village Council Members, and Council Members -Elect FROM: Village Attorney Davis CC: Village Manager Allen DATE: April 3, 2023 RE: Legal Update I am providing you with the following information, representing the most important and directly applicable legal and ethical items you each should keep in mind as you serve on the Village Council: 1. FORM OF GOVERNMENT a. Council Members are elected by the citizens and the Council is vested with legislative authority. The Council is the policy maker. (Charter Sec. 1.02). (The Council decides on the destination). b. The Mayor is appointed annually by the Council. The Mayor presides over all Village Council meetings, and generally serves as the ceremonial head of the Village. The Mayor has no administrative authority. (Charter Sec. 2.06). c. The Manager is a professional administrator hired by the Council to serve as Chief Administrative Official. The Manager administers and enforces the day-to-day operations of the Village and the policies made by the Council (Charter Sec. 3.01- 3.03). (The Manager gets us to the destination). d. The Village Charter specifically prohibits Council Members from interfering with the Manager's administration of Village operations: "Except for the purpose of investigations authorized by the Village Council, the Council and its members shall deal with Village employees solely through the Manager and neither the Council nor its members shall give orders to any such officials or employees, either publicly or privately" (Charter Sec. 2.12). Violation of this provision can be grounds for legal action via the recall petition process. e. Essentially, unless the Village Council as a body authorizes any particular Council Member to conduct an investigation by speaking to employees (investigation means "inquiry" in other words, ask questions, obtain facts), 7oi Northpoint Parkway, Suite 2o5, West Palm Beach, FL 33407 I p 561-586-p16 I f561-586-9611 ***. davislawtea m. com 0 LEADING ATTORNEYS IN LOCAL GOVERNMENT LAW AND ETHICS 0 Page 65 of 70 Agenda Item #4. Council Members are not permitted to direct staff in the performance of their duties in any manner whatsoever. Any such direction must instead be given to the Manager, who will then determine the most appropriate manner in which to proceed vis-a-vis Village employees. f. A majority of the Council (3 votes) is required for the Council to take any action (Charter Sec. 2.09). Some acts require a super -majority (4 votes) of the Council, e.g. hiring or removal of the Village Manager. g. No one Council Member may direct the Village Manager unless that authority has been given to such Council Member by action of the Village Council itself. h. The Village Charter allows the Village Council to adopt personnel policies (Charter Sec. 3.03). i. The Village Charter allows the Village Council to establish Village Departments (Once established though, the Manager is responsible for their operation) (Charter Sec. 3.05). j. The Village Manager administers the operation of all aspects of the Village in all other capacities. 2. SUNSHINE LAW a. Meetings of Council Members where official action or discussion about official action takes place must be open to the public, noticed, and recorded via minutes (Fla. Stat. Sec. 286.011). b. Council Members may not discuss any matter on which foreseeable action will be taken by the Council, except in a public, noticed and recorded Sunshine meeting. c. Knowing and intentional violations carry criminal penalties. d. The Sunshine Law does not apply to the Manager or the Attorney. Thus, any one Council Member may have private discussions about Village Council action items (or about anything else) with these persons at any time. e. One-way communication from one Council Member to all others (via e-mail or written memo for example) does not technically violate Sunshine Law requirements. However, if interaction/discussion/response ensues, then there would be a violation. f. Sunshine Law Exceptions include litigation "shade" meetings, and collective bargaining meetings with the Village's negotiating team. 3. PUBLIC RECORDS a. Any document, regardless of medium within which it is created, made or received in connection with Village business, is a public record (Fla. Stat. Ch. 119). b. Includes e-mail, text messages, and social media messages. c. If created on your personal e-mail, any correspondence that is a public record is your personal responsibility: YOU are responsible for maintaining the document pursuant to state records retention guidelines, and turning it over in response to a records request. Therefore, my strong recommendation is that all Village -related communications be made via your Village issued and maintained e-mail accounts. Avoid text messages and avoid using social media for Village -related matters. To the extent that these mediums generate a public record, that record must be properly preserved. d. Knowing and intentional violations carry criminal penalties. 2 Page 66 of 70 Agenda Item #4. 4. QUASI JUDICIAL PROCEEDINGS a. Land development or use requests including site plan approvals, special exceptions, and variances. All quasi-judicial proceedings involve the application of codified criteria to an application or request. These matters are handled at publicly noticed hearings and decisions must be based on the evidence received at such hearing. 1. Variances are requests to develop land contrary to codified code criteria. The applicant must prove (among other criteria) that application of the code creates a hardship that does not allow reasonable use of the land (Village Code Ch. 78 Art. 111). 2. Special Exceptions are requests to use land in a manner that has been determined to be permissible so long as certain protections are in place (Village Code Ch. 78, Art. IX, Division 3). b. Conditions of Approval may be imposed on quasi-judicial requests; however, any condition must be reasonably related to the request being made and must be proportional to the request being made (Village Code Secs. 78-65 and 78-365). Violation of this concept can, under recent case law, expose the Village to takings (known as "exaction") claims. c. Regarding ex-parte communications, pursuant to Sec. 286.0115(1), Fla. Stat., a municipality may adopt an ordinance or resolution removing the presumption of prejudice from ex parte communications with local public officials by establishing a process to disclose ex parte communications with such officials before or during the public meeting at which a vote is taken on such matters pursuant to this subsection or by adopting an alternative process for such disclosure. By doing so, persons who have opinions to the contrary to those expressed in the ex parte communication are given a reasonable opportunity to refute or respond to the communication. The Village of Tequesta HAS adopted such a resolution. 5. G I FTS a. Any gift from a vendor or lobbyist with annual aggregate value that exceeds $100.00 is prohibited (Sec. 2-444 Palm Beach County Code of Ethics; Fla. Stat. Sec. 112.3148). b. Otherwise, any gifts valued at $100.00 or more must be reported to the state (with a copy to the county) quarterly. Gifts from relatives are exempt from this reporting requirement (Sec. 2-444 Palm Beach County Code of Ethics; Fla. Stat. Sec. 112.3148). 6. VOTING CONFLICTS a. Any item before the Village Council for action that would result in a personal financial benefit or loss, or a financial benefit or loss to family member or spouse, or principal or business associate (Sec. 2-443 Palm Beach County Code of Ethics; Fla. Stat. Sec. 112.3143). There are no other legally recognized voting conflicts, and in the absence of this recognized category of conflict, you must vote on the matter before you. b. The affected Council Member must abstain from participation and voting, must disclose the nature of the conflict, and must complete a voting conflict form which gets appended to meeting minutes and a copy of which is provided to the Palm 3 Page 67 of 70 Agenda Item #4. Beach County Commission on Ethics (Sec. 2-443 Palm Beach County Code of Ethics; Fla. Stat. Sec. 112.3143). 7. CONFLICT OF INTEREST- DOING BUSINESS WITH THE VILLAGE a. Section 112.313(3), Fla. Stat., and the Palm Beach County Code of Ethics prohibit a public officer (elected or appointed) in his official capacity (including action taken by the collegial body) from directly or indirectly acquiring (purchase, lease, rent) anything for his agency from a business that the public officer or his spouse or child is an officer or owner of a "material interest" (5%). This applies to profit and non-profit businesses alike. b. Section 112.313(3), Fla. Stat., and the Palm Beach County Code of Ethics also prohibit a public officer (elected or appointed) acting in his capacity as a private businessperson from providing (sell, lease, rent) anything from his business to his agency or the political subdivision served by his agency. 1. Donations to the Village are allowed. 2. Merely being an employee, and being uninvolved with the provision is also allowed. c. Three general exceptions: 1. Rotation list containing all qualified suppliers. 2. Sealed bid process. 3. Health, Safety, Welfare emergency provision/acquisition. d. Finally, Section 112.313(7), Fla. Stat., and the Palm Beach County Code of Ethics prohibit a public officer from having a contractual relationship or employment with his agency OR with any business entity that is subject to the regulation of his agency OR is doing business with his agency. 1. Examples: A port authority regulating a shipping company; a Planning Board regulating general contractors doing business in the Village. Business Tax Receipt is not included, nor is the enforcement of laws of general applicability. 2. The key is that you cannot serve two masters (both the Village and the business interest). 3. The statute and code are written in an attempt to prevent situations where private economic considerations may override the faithful discharge of public duties. It is concerned with what might happen, with the temptation to dishonor. 8. MISUSE OF PUBLIC POSITION a. Section 112.313(6), Fla. Stat., and the Palm Beach County Code of Ethics prohibit public officers from corruptly using or attempting to use their official position or any property or resource within their trust, or perform their official duties, to secure any special privilege, benefit, or exemption for themselves or for another. Corruptly means "with wrongful intent." 9. LOBBYISTS a. Anyone who is employed and for compensation, seeks to influence a decision of the Village Council or other Village Board, through oral or written means, or attempts to obtain the goodwill of any Council Member or Village personnel (Palm Beach County Lobbyist Registration Ordinance). 4 Page 68 of 70 Agenda Item #4. b. Exceptions are: Village personnel acting on behalf of the Village; someone hired solely to appear at a quasi-judicial hearing or comp plan hearing; expert witness hired to offer expert testimony; someone speaking on their own behalf; a League of Cities employee speaking on behalf of the League. Attorneys representing a client in an administrative or judicial proceeding, or at mediation or arbitration are not considered to be lobbyists (Palm Beach County Lobbyist Registration Ordinance). c. Prior to lobbying, a lobbyist must register at the county's central lobbyist registration site and pay the requisite fee ($25.00). d. Former elected officials must wait two (2) years from the end of their service prior to lobbying in front of their former governing body (Fla. Stat. Sec. 112.313 (14)). 10.ANNUAL FINANCIAL DISCLOSURE a. All Village Council members must submit an "Annual Statement of Financial Interests" (known as Form 1) no later than July 1 of each calendar year they are in service. (Fla. Stat. Sec. 112.3145). b. Failure to submit timely carries civil penalties ($25.00 per day for each day of delinquency up to a maximum of $1,500.00) (Fla. Stat. Sec. 112.3145). c. Legislation filed in the 2023 session (CS/HB 37) as of the publication date of this Memorandum would, if signed into law, require elected municipal officials (as well as managers) to Complete the "Full and Public Disclosure of Financial Interests" (Known as Form 6) instead. This is the same form required of County Commissioners and State Constitutional Officers. It is a much more invasive form in the sense that it requires disclosure of net worth, investment, and debt/liability figures. 11. MANDATORY ETHICS TRAINING a. Each year, all elected Village Council members must complete a minimum of four (4) hours of ethics training. The content must include the Code of Ethics (s. 8, Art. II Florida Constitution and Fla. Stat. Ch. 112 Part III), the Sunshine Law, and Public Records. Compliance is reported on the annual statement of financial interests and is on the "honor system". Council members should complete the required state -mandated training as close as possible to the date they assume office. A newly elected Council member who assumes a new office on or before March 31 must complete the annual training on or before December 31 of that year. However, if the individual takes office after March 31, he or she is not required to complete the training until the next calendar year. b. In addition, Pursuant to Article XIII, Sec. 2-446 of the Palm Beach County Code of Ethics, all Council members are required to read the Palm Beach County Code of Ethics, receive training on the requirements of the Code of Ethics and sign an acknowledgement form. All Village elected officials must receive initial training within sixty (60) days of taking office. After initial training, periodic mandatory follow-up training is required of all Village elected and appointed officials upon re- election or re -appointment, as applicable, and should be completed in accordance with Village policy. 5 Page 69 of 70 Agenda Item #4. 12. PERSONAL LIABILITY a. Acting pursuant to the Village Attorney's advice insulates and protects you from personal liability. b. Conversely, should you decide to disregard such advice, you are exposed to personal liability. Even if I am wrong (difficult to comprehend, I KNOW!!), you are insulated from personal liability. 6 Page 70 of 70