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HomeMy WebLinkAboutResolution_29-94/95_08/10/1995 • RESOLUTION NO. 29 - 94/95 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, AUTHORIZING EX -PARTE COMMUNICATIONS IN QUASI - JUDICIAL MATTERS RELATING TO THE VILLAGE OF TEQUESTA COUNCIL, ITS COMMISSIONS AND BOARDS, PURSUANT TO HOUSE BILL 5 ATTACHED HERETO; PROVIDING FOR DISCLOSURE REQUIREMENTS; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Florida legislature, pursuant to House Bill 5, copy attached hereto, has authorized ex -parte communications in quasi - judicial matters pursuant to certain disclosure requirements contained herein; and WHEREAS, the Village Council of the Village of Tequesta wishes to adopt the disclosure requirements contained within House Bill 5 in order to take advantage of the ability of the Village Council, • its commissions and boards, being allowed to engage in ex -parte communication. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, as follows: Section 1. The Village hereby adopts the provisions of House Bill 5, thereby allowing ex -parte communications in regard to quasi - judicial matters and so as to provide that said communications shall not be presumed prejudicial. Section 2. The Village hereby adopts the following disclosure requirements: A. In the event of any ex -parte communication with a local public official which relates to quasi - judicial action pending before the • official, it shall be the responsibility of • such public official to disclose the subject of the communication and the identity of the person, group or entity with whom the communication took place and said information shall be made a part of the record before final action on the matter. B. A local public official may read a written communication from any person, however, any written communication that relates to a quasi - judicial action pending before a local public official shall be made part of the record before final action on the matter. C. Local public officials may conduct • investigations and site visits and may receive expert opinions regarding quasi - judicial action pending before them, however, the existence of the investigation, site visit, or expert opinion shall be made a part of the record before final action on the matter. D. Disclosure made pursuant to paragraphs A, B and C must be made before or during the public meeting at which a vote is taken on such matters, so that persons who have opinions contrary to those expressed in the ex -parte communication are given a reasonable • 2 • opportunity to refute or respond to the communication. Section 3. This Resolution shall become effective immediately upon passage. THE FOREGOING RESOLUTION was offered by Councilmember William E. Burckart , who moved its adoption. The Resolution was seconded by Councilmember Elizabeth A. Schauer and upon being put to a vote, the vote was as follows: FOR ADOPTION AGAINST ADOPTION Carl Hansen Ron T. Mackail William E. Burckart Elizabeth A. Schauer • The Mayor thereupon declared the Resolution duly passed and adopted this 27th day of July , 1995. MAYOR OF TEQUESTA ' i/' ) .::�F -;�n Ron T. Mackail ATTEST: Vi lage Clerk JCR \13153 01 \RESOLUTI.EXP • 3 ENROLLED EMOLLED 1995 Leff"lalture CS /KR 5, Zed Engrossed 1995 Legislature CS/He S, 2nd Engrossed 1 1 Be It Enacted by► tbo Legislature of the State of Florida: 2 An act relating to access to local public 2 3 officials; creating s. 286.0115, F.S.; 3 Section 1. section 286.0115, Florida Statutes, is 4 authorising couaties and municipalities to 4 created to read: b adopt certain ordinances or revolutions related 5 286.0115 Access to local public officials.- - 6 to ex -part* conrunications with public 6 (1) AUT80RITY.--A toasty or municipality say adopt an 7 officials] providing a definition; providing 7 ordinance or resolution removing the presumption of prejudice a for access to public officials; authorizing a f ex -parte comwtmicatioas with local public officials by 9 investigations and receipt of information; 9 establishing a process to disclose ex-parte communications 1• requiring disclosure of ox part* oesemsication; 10 with such officials pursuant to this section or by &del. ing an 11 authorising local rules or procedures; 11 alternative process for such disclosures. sawever, this 12 providing an affective data. 12 section does not require a county or municipality to adopt any 13 13 ardimance or resolution establisbing a disclosure process. 14 WHEREAS, government in Florida is conducted in the 14 (2) OEFIMITION. --As used in this section, the term 13 soushine pursuant to chapter 286, Florida Statutes, and 15 ^local public official" mews any elected or appointed public 16 WHEREAS, the public should be able to voice its 16 official bolding a county or municipal office wbo recosmeands 17 opinions to local elected public officials, and 17 or takes quasi - judicial action as a rmm%ber of a board or le WNER AY, elected and public officials are presuxmd to 18 commission. Thu term does not include a Member of the board 14 perform their duties in a lawful and proper sensor, and 19 or commission of any state agescy or authority. 26 RH6REA8, quasi-judicial decisionwaking most be based on 20 (3) ACCESS PEMUTTED.- -Any person not otherwise 21 eoMetent, substantial evidence of record, and 21 prohibited by statute, charter provision, or ordinance nay 22 NHBREAS, local elected public officials have been 22 discuss with any local public official the merits of any 23 obstructed or impeded from the fair and effective discharge of 23 matter on which action way be taken by any board or commission 24 their sworn duties and responsibilities dine to expensive 24 an which the local public official is 'a member. If adopted by 25 interpretations of Jennings v. Dade County, a decision 25 county or municipal ordinance or resolution, adherence to the 26 rendered by the Third District Court of Appeal, and 26 following procedures shall remove the presumption of prejudice 27 XMMHAS, Section S, Article I of the State Constitution 27 ariaing.frew es-parte communications with local public 28 gives the people the right peaceably to assemble, to instruct 28 officials. 29 their representatives, and to petition for redress of 29 (a) The substance of any ea-parte communication with a 30 grievances, NON, THEREFORE, 30 local public official which relates to quasi-judicial action 31 31 pending before the official is not presur*d prejudicial to the 1 2 cont"Gi Words stricken are deletions; words UndgrjinSQ are additions. CODING: Words sirickan are deletions] words SAdjr_"n " ■ re addition*. N 7 .ti ro ■ a N e Lei � w , � M ■ V � ° ■ b Y N Y w a � 0 w R � w Q 9 h5 r J ri N M d Y1 `O h e .` • ri N M d u1 •• h A C` • .� N M tii •O h A P • ri O P4 ml n4 N mf ml ml N N r+l N N N N N N N N N M M V _ 41 A a a� 14 40 ob 4 lod n M O • M .9 ' { O � A • q N / r •p A� M 4 C rI .0 • op w t C ` 1i M A O R l O •i G M M x M •_ Q ■ O 11 U ■ 0 M • Y ■ r +1 �k ° u y s g w o m o; a a a 'e a a • M { R� •ri ar Q A t D . R p � 6 ,� tl a n q 77 a 4w se pp 1g. ,IG e A In e' s tr 40 64 so o '' L IL 0 r4 s 41 C • M r4 C �p y i . . ++ v M • $ O M I I O • M O M IN Y AMUR a 41 a .w .4 O .t p rt v O d • • O M ., S O .� Q Ol Y 'T1 ..1 M M Y 'rl O O n ■ a M A M M 7 • w a ■ o • �s + + v v u u v e g a m ro n T M r V 4 .°y V A d O O y N N 111 d 1/1 `0 h O O O H N M d 1!1 .O f� Q• O N N N N1 d O b .•� � '+ N r•1 .M � .+ r-1 N N N N N N N N N N N NI MI U Village of Tequesta MAY 2 3 1995 Village Manager's Office Ell 110rija Iouse ol Tom WARNER May 19, 1995 REPRESE`TA Fl` E, DISERICT 82 Tom Bradford, Village Manager Village of Tequesta Post Office Box 3273 Tequesta, FL 33469 -0273 Dear Tom: On May 1, 1995, the Florida Legislature unanimously passed CS /HB 5, which relates to local access to public officials. The bill came about due to numerous complaints by private citizens and local governments regarding restricted access to public officials, particularly relating to local planning and zoning issues. This bill authorizes local governments to establish a disclosure process removing the presumption of prejudice from ex parte communications with appointed or elected public officials related to quasi- judicial pending matters. Local governments are not required to adopt any disclosure process, but a • model process which may be adopted is established in the bill. The disclosure process established by the bill declares that the substance of any ex parte communication is not presumed prejudicial to the action if the subject of the communication and identity of the person, group, or entity with whom the communication took place is disclosed by the local official. Such disclosure shall be made a part of the record before or during the public meeting at which a vote is to be taken on the matter. Anyone having opinions contrary to those expressed in the ex parte communications will be given a reasonable opportunity to refute or respond to the communications. The bill clarifies that noncompliance with ex parte disclosure procedures does not subject local public officials to the Code of Ethics. To assist you in reviewing the provisions of this legislation, I am enclosing a copy of the staff analysis of the bill. A copy of the bill as presented to the Governor will be sent to you directly from Tallahassee. Please give us a call if we can be of further assistance. Sincerely, Tom Warner State Representative • Enclosures 987 ,SIut1I F.J6,lHyli_ay CCAII tiiITTEU 2-t2 Re Capitol Sthlart, FL,34 Commerce • Iuc(iciary /Real Property & Family Law, CA,,, T ffahassee, FL aLw -iav 407'223-5010 Xdtura[Fesources • utilities & Telecommunications • Claims y�04.488 -8832 STORAGE NAME: h0005s1 a.ee DATE: March 9, 1995 HOUSE OF REPRESENTATIVES COMMITTEE ON ETHICS AND ELECTIONS • BILL ANALYSIS b ECONOMIC IMPACT STATEMENT BILL #: CS/1­113 0005 RELATING TO: Access to Local Public Officials (Quasi - Judicial Proceedings) SPONSOR(S): Committee on Ethics and Elections; Rep. Constantine; Rep. Minton and others STATUTE(S) AFFECTED: creates s. 286.0115, F.S. COMPANION BILL(S): SB 438 ORIGINATING COMMITTEE(S) /COMMITTEE(S) OF REFERENCE: (1) ETHICS AND ELECTIONS YEA 8 NAY 0 ( (3) (4) (5) I. SUMMARY This bill authorizes ex parte communication with local public officials and declares that such communication shall not be presumed prejudicial to pending quasi - judicial matters if disclosure of such communication is made prior to or during the public meeting at which a vote is taken on such matters. The bill provides that those holding opinions contrary to those expressed in the ex parte communication are to be afforded a reasonable opportunity to refute or respond to such communication. The bill does not have a significant fiscal impact upon state or local government. • • STANDARD FORM 11/90 STORAGE NAME: 110005sla.ee DATE: March 9, 1995 PAGE 2 II. SUBSTANTIVE ANALYSIS A. PRESENT SITUATION: County and municipal governing bodies are administrative bodies which perform mostly legislative acts (e.g., adopting annual budgets and millage rates, and adopting ordinances dealing with a variety of subjects relating to public health, safety, and welfare.) However, these bodies also perform certain acts which are classified as quasi- judicial. BLACK'S LAW DICTIONARY defines quasi- judicial as follows: Quasi- judicial is '[a] term applied to action, discretion, etc., of public administrative officers or bodies who are required to investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature.' The present controversy involves the ability of local public officials to communicate with their constituents, particularly when they receive what may be described as ex parte communications on pending quasi- judicial matters coming before a board or commission of which an official is a member. BLACK'S LAW DICTIONARY defines ex parte as 'one side only; by or for one party; done for, in behalf of, or on the application of, one parry only.' Additionally, a useful description of the meaning of ex pane communications in the context of administrative proceedings may be found in the federal Administrative Procedure Act, 5 U.S.C. s. 551(14), which provides in pertinent part that an ex parse communication is ' an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given....' Two recent court cases related to ex parse communications have placed new restrictions on county and municipal governing body members in the conduct of quasi- judicial proceedings and have brought certain rezoning proceedings formerly and traditionally deemed to be legislative into the quasi- judicial category. In Jennings v. Dade County 589 So.2d 1337 (Fla. 3rd DCA 1991), rev. denied 598 So.2d 75 (Fla. • 1992), the Florida Supreme Court examined ex parse communication and held that, although quasi - judicial hearings are not controlled by strict rules of evidence and procedure, they must provide certain minimum standards of due process. In Jennings the Third District Court of Appeal reviewed prior case law regarding the due process effect of an ex parte communication upon a quasi - judicial proceeding. The Court focused on the nature of ex parte communication and whether it was material to the point that it prejudiced the complaining parry and resulted in a denial of procedural due process. In Jennings the Court created a rebuttable presumption of prejudice. That is, once prejudicial ex parte communication affecting a quasi - judicial hearing has been alleged, such prejudice is presumed. The burden then shifts to the respondent to rebut the presumption that the claimant was prejudiced. In Board of County Commissioners of Brevard County v. Synder 627 So.2d 469 (Fla. 1993), the Florida Supreme Court brought certain types of zoning issues under the category of quasi judicial actions and therefore, subject to the finding in Jennings related to ex parte communication received by officials on such matters. In Synder the Court held that 'Rezoning action which entails application of general rule or policy to specific individuals, interest or activities is quasi - judicial in nature, subject to strict scrutiny on certiorari review' and that 'Although [a] board is not required to make findings of fact in denying [an] application of rezoning, upon review by certiorari in the circuit court it must be shown there was competent substantial evidence presented to [the] board to support its finding.' As a consequence of Jennings and Synder many local public officials have come to believe that they are not able to communicate in certain instances with the constituents that they were elected to represent, and, as a consequence, are experiencing difficulties in the performance of their official duties and responsibilities. • STANDARD FORM 11/90 STORAGE NAME: h0005s1 a.ee DATE: March 9, 1995 PAGE 3 B. EFFECT OF PROPOSED CHANGES: • This bill overturns the presumption of prejudice that was established by the Jennings case. It permits discussions on substantive issues between local public officials and members of the public, including ex parte communication on pending quasi- judicial matters. The bill declares that such discussions may not be presumed prejudicial to the action taken by a board or commission If disclosure of the substance of such communication is made prior to a vote being taken on the matter. The bill will allow local public officials to speak with their constituents and read their mail, consult with experts, and conduct investigations and site visits on pending quasi- judicial matters. The bill requires disclosure of such communications prior to or during the public meeting where a vote is to be taken on such matters. Further, it requires that those holding opposing views be afforded a reasonable opportunity to refute the substance of such ex parte communications. Local public officials are not restricted from establishing more restrictive rules governing public meetings or the contact of local public officials. C. SECTION -BY -SECTION ANALYSIS: Section 1. Creates s. 286.0115, F.S.; defines 'local public official' to mean any elected or appointed county or municipal official who recommends or takes quasi- judicial action; permits discussions with local public officials relative to the merits of an issue; declares that ex parte communications shall not be presumed prejudicial if disclosed; provides circumstances under which the substance of ex parte communications with local public officials relating to pending quasi- judicial actions are deemed public information; provides circumstances under which written communication relating to pending quasi - judicial action is deemed public information; authorizes circumstances under which local public officials may receive expert opinions and conduct investigations and site visits relative to pending quasi - judicial actions; requires local public officials to disclose ex parte communications received regarding the merits of any pending quasi- judicial matter; provides for such disclosure prior to or during meeting at which a • vote will be taken; requires that a reasonable opportunity be provided to opponents of opinions expressed in ex pane communications to refute or respond to such communications; clarifies that the act's provisions shall not restrict the authority of any board or commission to establish rules or procedures governing public hearings and contacts with local public officials. Section 2. Provides that the act shall take effect upon becoming law. Ill. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT A. FISCAL IMPACT ON STATE AGENCIES /STATE FUNDS: 1. Non - recurring Effects None 2. Recurring Effects None 3. Long Run Effects Other Than Normal Growth None 4. Total Revenues and Expenditures None STANDARD FORM 11/90 STORAGE NAME: h0005sl a.ee DATE:. March 9, 1995 PAGE 4 B. FISCAL IMPACT ON LOCAL GOVERNMENTS AS A WHOLE: • 1. Non - recurring Effects None 2. Recurring Effects None 3. Long Run Effects Other Than Normal Growth None C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR: 1. Direct Private Sector Costs None 2. Direct Private Sector Benefits None 3. Effects on Competition, Private Enterprise and Employment Markets None D. FISCAL COMMENTS: • None IV. CONSEQUENCES OF ARTICLE VII, SECTION 18 OF THE FLORIDA CONSTITUTION A. APPLICABILITY OF THE MANDATES PROVISION: None B. REDUCTION OF REVENUE RAISING AUTHORITY: None C. REDUCTION OF STATE TAX SHARED WITH COUNTIES AND MUNICIPALITIES: None V. COMMENTS Although the bill permits ex parse communication on quasi- judicial matters if disclosure is made by the local public official, there are no provisions related to the status of the situation if no disclosure is made. Presumably noncompliance with the disclosure requirement could cause a court of law to declare an ex pane communication prejudicial and use it as a reason to reverse the decision of the board or commission on the quasi - judicial matter. CONSIDERATION OF EX PARTS LEGISLATION BY 1994 LEGISLATURE • CS /HB 5 by Representatives Constantine, Minton, and others, filed for the 1995 Session, is essentially the ex parse communication bill passed by the House during the 1994 Regular Session as amended by the Senate. It is identical to the bill filed for Special Session D. STANDARD FORM 11/90 STORAGE NAME: h0005s1 a.ee DATE: March 9, 1995 PAGE 5 Both the House and Senate considered bills during the 1994 Regular Sessions related to the issue of ex parte communication with local public officials on quasi- judicial matters. The Committee on Community Affairs combined a committee bill, HB 2585, and HB 77 by Rep. Constantine to pass a committee substitute, CS /HB 2585 AND HB 77, which subsequently passed the House by a vote of 111 to 0. The Senate substituted the House bill in place of its Senate companion, CS /SB 262 by Community Affairs, Sen. Silver and others, amended it and sent it back to the House by a vote of 36 -0. The bill died in House messages. HB 109 -D by Rep. R. Saunders, Constantine and Goode, was filed in Special Session D. Its introduction was deferred. VI. AMENDMENTS OR COMMITTEE SUBSTITUTE CHANGES The Committee Substitute adds appointed officials to the definition of 'local public official'. VII. SIGNATURES COMMITTEE ON ETHICS AND ELECTIONS: Prepared by: Staff Director: Edith 5.-Dunlap Sarah Jane Bradshaw 0 • STANDARD FORM 11/90