No preview available
HomeMy WebLinkAboutDocumentation_Workshop_03/28/2007JONE S FOSTER JOHNSTON & STUBBS, P.A. Attorneys and Counselors Memo To: Village Council From: Scott G. Hawkins Date: March 16, 2007 Subject: Village of Tequesta Council Workshop -March 28, 2007 at 1:30 pm Village of Tequesta Our File No. 13153.1 VILLAGE CHARTER I. Overview The Florida Constitution provides only the following limitations on a municipality: (a) it must exercise powers only for municipal purposes and (b) the legislative body must be elected. See Florida Constitution, Art. 8, Sec. 1 (Counties), and Sec. 2 (Municipalities). Also, under the statutory scheme, municipalities are limited to only governmental, corporate and proprietary powers so as to enable them to conduct municipal government, perform municipal functions, and render municipal services. A municipality may exercise any power for municipal purposes, except when expressly prohibited by law. See §166.021, Fla. Stat. Accordingly, there are no detailed constitutional or statutory provisions related to the governmental structure of municipalities or to such matters as the composition of the municipal council, the term of the members, or like matters. Rather, the municipal charter is the paramount law of a municipality; it is the municipality's constitution emanating and giving it all the powers it possesses, unless other statutes are applicable to it. Clark v. North Bay Village, 54 So. 2d 240 (Fla. 1951); Gontz v. Cooper City, 228 So. 2d 913 (4th DCA 1969). March 16, 2007 Page 2 II. City Manager Form of Government Generally, there are three basic forms of municipal government in Florida: (1) Mayor- Council; (2) Commission; and (3) Council-Manager or City Manager. See 12A Fla. Jur. 2d §73. The feature that characterizes the commission form of government is the delegation of all executive and legislative powers to a single board consisting of a mayor and a limited number of commissioners, in much the same manner as the delegation of the power to administer a private corporation to its Board of Directors. Under this structure, the commissioners not only have the legislative power, but also exercise executive or administrative power. Often each commissioner is the head of a department such as finance, fire and police, health, public recreation, and public works. The commission elects a mayor as one of its own body and the mayor presides over the meetings. Under some "strong mayor" form, the mayor is given more administrative authority. The weakness of the commission form of government has fostered another type known as the council-manager or city manager form of city government. In this type, the city commission is elected by the voters, whose members in turn elect the mayor to preside over the meetings. The distinctive feature of this form of municipal government is the hiring of the professionally trained administrator, known as the city manager, who exercises all of the administrative functions. He or she also selects the heads of the various city departments. Generally, the city manager is appointed by the council or commission and is subject to removal of that body as provided for in the charter. In the city manager form of municipal government, the basic tenet is that the council is the policy-making body. The manager is the chief administrative officer. As the administrative head of the city, the city manager must exercise discretionary powers in the management of city affairs. He is not a mere ministerial "figurehead" as he has the power to remove officers and employees, make appointments, and perform all other administrative matters. Section 1.02 of the Village Charter provides that the Village will be aCouncil-Manager government. The power of the Village shall be vested in an elective Council, hereinafter referred to as the Village Council, which shall enact local legislation, adopt budgets, determine policies, and appoint a Village Manager...the Village Manager shall execute the laws and administer the government of the Village. March 16, 2007 Page 3 III. Village Council The powers of the Council are dealt with in Article II of the Village Charter. Sections 2.01 through 2.05 pertain to the election to office, including qualification, term, and compensation of Council members, oath of office, and procedures for removal and filling vacancies. Section 2.06 provides that the Village Council shall appoint one of its members to be Mayor and another member to be Vice-Mayor. The officers will serve for one year at the pleasure of the Council. The Mayor is responsible for presiding at Council meetings and executing all instruments to which the Village is a party. However, the Mayor shall have no administrative duties. The Vice-Mayor shall act as Mayor during the absence of the Mayor. The Council shall hold monthly regular meetings. Section 2.07. A special meeting may be called by the Mayor, the Village Manager or any two members upon three days notice. Section 2.07, Village Charter; Section 2-32, Village Code. A majority of the Council members shall constitute a quorum to do business, but no action shall be taken except to adjourn when only three members are present unless their votes are unanimous. Section 2.08. IV. Relationship Between Village Council and Village Manager and Staff Under Article II, the Council is specifically prohibited from interfering with the administration of the Village. Section 2.11 provides as follows: Neither the Council nor any of its members shall in any manner dictate the appointment or removal of any Village employee. The Council shall have the power to remove the Village manager as provided in this Charter and may express its views and discuss all matters with the manager. Except for the purpose of inquiries or investigations under this Charter, 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. (Emphasis added). The Village Charter allows for "inquiry" and "investigation." There is no procedure laid out in the Charter for how an inquiry is made. But a clear distinction is drawn that dealings other than mere inquiry must go through the Manager. There is a difference between inquiry to obtain facts that assist Council members in carrying out their duties - legislation, adoption of policy, and the appointment and removal of a manager - as opposed to inquiry to undermine the Manager's authority and/or to interfere with the administration of business. March 16, 2007 Page 4 The common dictionary definition of "inquiry" and "investigation" involves "fact gathering." The fact gathering should be for a proper purpose and consistent with the powers of the Village Council members - i.e., adoption of policy and legislation, not for the purpose of interference, intimidation, or influencing the administration of the Village affairs. Again, the Council is a policy making-body whereas the Village Manager is in charge of administration. These types of provisions are common and violation of the provisions by Council members has been the subject of litigation -primarily seeking recall or injunctive relief. The Florida Supreme Court has held that a claim for "malfeasance due to persistent, repeated violations of city manager form of government" stated a valid basis for a petition for recall of a city council member. Garvin v. Jerome, 767 So. 2d 1190 (Fla. 2000). In that case, the council member was accused of "giving work instructions to city employees without first going through the city manager and without city council discussion or approval, taking unlawful, unilateral action to advertise for apart-time interim city manager." Id. Most courts have difficulty defining a bright line distinction between "inquiry" and "investigation" as opposed to "intimidation" or "interference." As one court noted in Levy v. City of Santa Monica, 114 Cal. App. 1252 (2d Dist. Cal. 2004): It is not easy to distinguish between "inquiry" and "acts" designed to influence the decision. General words [such as "inquiry"] create different and often particular impressions on different minds. In that case, the court concluded that a city council member did not violate the charter by speaking with the City Planning Department employees on behalf of a constituent to simply inquire about a structure built on a neighbor's property. Also, In re Herbert Carl Bosso, 231 S.E. 2d 715 (W.V. 1977), the court of appeals reversed the lower court's conviction and removal of a city councilman for unlawfully interfering with the city administration. The council member had inquired of the city manager: "Why don't you fire the damn chief of police?" The court concluded that removal is a drastic remedy and a violation must be proved by clear and convincing evidence. The words used by the council member were subject to interpretation and could have been construed as a matter of inquiry as opposed to direction. Generally, information sought by a Council member is for one of two purposes: (1) to respond to a constituent; or (2) for use at Council meetings. The Village should have an appropriate policy in place to disseminate information to all Council members in advance of meetings so that all members have access to the same information. Another issue is whether the inquiry or information gathering needs to be centralized through the Manager. While there is no such restriction in the Charter, it is not a bad idea (as a practical matter) so that the Manager keeps a handle on the administrative March 16, 2007 Page 5 time being devoted to such inquiries, etc. However, for minor inquiries, etc., this is inconvenient and seems a waste of time. The language of the Charter is broad enough' so that individual Council members may make inquiry with staff directly -especially when seeking information as to respond to a constituent, gathering information for use in adoption of policy, and assisting Council members in their ability to assess the manager. In any event, caution should be taken to avoid undermining the city manager form of government, intimidation of staff, or interference with the manager's ability to manage staff. Accordingly, we recommend that to avoid appearances of impropriety and interference and to promote efficiency of government and the city manager form of government, most inquiries should go through the Manager. Lastly, if a Council member has concerns whether the Manager is carrying out policy and directive of the Council, we recommend that the inquiry should be addressed by the Council as a body, as no Council member has individual authority to act or interfere in staff management. Only the Council as a body may do so -and then only by removal of the Manager or adoption of personnel policies. This will avoid any appearance of impropriety and interference with the management structure. Each Council member must exercise discretion and good judgment keeping in mind that their function is to adopt policy and legislation -not to manage or administer those policies. It is better to err on the side of caution than to be accused of violation of this charter provision. V. Village Administration The administration is dealt with in Article III. Article III clearly vests all administrative powers in the Village Manager and the Village clerk and such other department heads as provided for by the Charter, Florida law or by vote of the Village Council. Section 3.01. The Manager is appointed by the affirmative vote of four members of the Council and must be removed by like vote. Section 3.02. The Village Manager is the supervisor of all administrative affairs of the Village. The Manager's powers are very broad under Section 3.03(1)-(10). This is simply the opinion of this law firm, as no court has spoken to the issue, and reasonable men may disagree on that interpretation. What is clear is that because the remedy for violation is drastic and penal in nature -removal from office -the courts would probably take a more expansive view of any ambiguity. March 16, 2007 Page 6 Section 3.05 further provides that each department head is subject to the general supervision and direction of the Village Manager. The Village Manager has the right to hire and fire all staff. One limitation on the Village Manager's powers is found in Section 3.03(6) as follows: To appoint and when deemed necessary for the good of the Village, suspend or remove any Village employee and/or department head provided for, by, or under this Charter, or by ordinance, except as otherwise provided by Florida law, this Charter or personnel rules adopted by ordinance or resolution. Thus, the Council not only has the authority to determine what departments should exist, but it also has the authority to adopt personnel rules. After that it is the Village Manager's job to administer those policies and oversee the departments. In sum, and simply stated, it is the Council's function to pass legislation (ordinances) and to adopt general policies as a group. No individual Council member has any authority to act on or interfere with any administrative matter. It is the Manager's job to administer, manage, and carry out the policies and ordinances adopted by the Council. FLORIDA SUNSHINE LAW I. Overview Florida's Sunshine Law, § 286.011, Fla. Stat., provides a right of access to governmental proceedings at state and local levels. The purpose of the enactment of the Sunshine Law was to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance. Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974). Entities subject to the Sunshine Law include any board or commission of any state agency or authority, or of any agency or authority of any county, municipal corporation, or political subdivision. § 286.011(1). The law is equally applicable to elected and appointed boards and has been applied to any gathering of two or more members of the same board to discuss some matter which will foreseeably come before that board for action. Tolar v. School Board of Liberty County, 398 So. 2d 427, 428 (Fla. 1981). The statute provides three basic requirements: (1) meetings of public boards or commissions must be open to the public; (2) reasonable notice of such meetings must be given; and (3) minutes of the meetings must be taken. March 16, 2007 Page 7 No resolution, rule or formal action taken by a board or commission will be considered binding except as taken or made at a public meeting. § 286.011(1). The statute also provides consequences for failure to comply with the Sunshine Law, including criminal penalties, removal from office, and attorney's fees. § 286.011(3)-(7). Where there has been a violation of the Sunshine Law that invalidates a decision, the invalid action may be cured by a later open meeting. However, the action at the later meeting cannot be "merely a ceremonial acceptance of secret actions" or "merely a perfunctory ratification of secret decisions" made at the earlier meeting. Tolar, 398 So. 2d at 429. The board or commission must take independent final action in the sunshine in order to cure the defect. II. Meetings between an individual Council member and an individual member of another Village Board. The Sunshine Law does not apply to a meeting between two individuals who are members of different boards, as long as the following three requirements are met: a. two or more members of either board are not present; b. neither member has been delegated decision-making authority to act on behalf of his or her board; and c. neither member is acting as a liaison for his or her board or any smaller group of board members. The language of the Sunshine Law provides, "All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule or formal action shall be considered binding except as taken or made at such meeting." § 286.011(1). The Florida courts and the office of the Florida Attorney General have held that the Sunshine Law applies to "any gathering where two or more members of a public board or commission discuss matters on which foreseeable action will be taken by the board or commission." AGO 87-34. However, a meeting between two individuals who serve on two different boards is not a "meeting" under this definition. While the members of two or more different boards may be meeting, no two members of any one board will be present, so it is not a "meeting of any board." March 16, 2007 Page 8 If neither of the members has the authority to make any decisions or recommendations during the meeting on behalf of his or her board, then they may meet privately to discuss the details of a board's recommendation with each other. Rowe v. Pinellas Sports Authori~r, 461 So. 2d 72, 75 (Fla. 1984); News-Press Publishing Co., Inc. v. Lee County, 570 So. 2d 1325, 1327 (Fla. 2d DCA 1990); AGO 87-34. As long as each member is simply gathering information to report back to his or her respective board, and is not acting as a liaison for other board members by circulating information and thoughts of the board members to the other representative, then there is no violation of the Sunshine Law. Id. Because there is no decision-making function taking place, these types of meetings are not required to be open to the public. The Sunshine Law does not prohibit a Council member from attending other board meetings and commenting or expressing his or her views on agenda items that may subsequently come before the Council for final action. AGO 00-68. However, if two or more Council members are in attendance at the same meeting, the Council members attending the meeting may not engage in discussion or debate on those issues among themselves. AGO 98-79. Likewise, a Council member's attendance at a meeting of a board on which another Council member serves as a board member does not violate the Sunshine Law. AGO 91-95. II1. Meetings between the Mayor and an individual Council member. When the Mayor is a member of the Council and has a vote in the decision-making of the Council, meetings between the Mayor and an individual Council member to discuss some matter which will come before the Council are subject to the Sunshine Law. AGO 83-70. The Mayor may call individual Council members to discuss administrative business that is not the subject matter of Council action. See AGO 83-70. For example, the Mayor may call Council members to confirm their attendance at an emergency meeting. IV. Meetings between an individual Council member and Village Manager. A city manager is not a member of the Council and thus, may meet with individual Council members. AGO 74-47. However, the manager may not act as a liaison for Council members by circulating information and thoughts of individual Council members. Id. Managers may not be delegated decision-making functions outside the ambit of normal administrative functions and may not act in place of the Council or its members at their direction. See AGO 89-39. Thus, a city manager should refrain from polling each Council member on his or her position on a specific matter which will foreseeably be considered by the Council at a public meeting in order to provide the information to the members of the Council. AGO 89-23. However, a city manager may contact individual Council members for their March 16, 2007 Page 9 views on a particular matter when the manager, and not the Council, has been vested with the authority to take action on the matter. Inf. Op. to Biasco, July 2, 1997. V. Meetings between an individual Council member and staff. Unpublicized meetings between Council members and their advisers, consultants, or staff who assist the Council member in the discharge of his or her duties are not "meetings" for the purposes of the Sunshine Law. Staff persons are not subjected to the Sunshine Law unless they have been delegated decision-making functions outside of the ambit of normal staff functions, are acting as liaisons between board members, or are acting in place of board members at their direction. AGO 89-39. VI. Written communications between Council members. The use of a written report by one Board member to inform other Board members of a subject which will be discussed at a public meeting is not a violation of the Sunshine Law if there is no interaction prior to the meeting that is related to the report. AGO 89- 23. However, if a written report is circulated among Board members for comments with comments being provided to other Board members, then there would be a violation of the Sunshine Law. AGO 90-03; 96-35. VII. Telephone communications between Council members. The Sunshine Law applies to the deliberations and discussions between two or more members of a board or commission on some matter which will foreseeably come before the board for action. The use of a telephone to conduct such discussions does not remove the conversation from the requirements of the Sunshine Law. AGO 89-39. However, individual Council members may call each other or the Mayor may call the Council members to discuss administrative business that is not the subject matter of Council action. For example, the Mayor may call Council members to confirm their attendance at an emergency meeting. VIII. Email communications between Council members. Similarly, the use of email by members of a public board to communicate among themselves on issues pending before the board is subject to the Sunshine Law. AGO 89-39. However, cone-way email communication from one Council member to another regarding factual background information, when it does not result in the exchange of Council members' comments or responses on subjects requiring council action, does not constitute a "meeting" subject to the Sunshine Law. AGO 01-20. Such emails are considered public records, however, and must be maintained by the records custodian for public inspection and copying. AGO 96-34; AGO 01-20. March 16, 2007 Page 10 In order to avoid any confusion or potential violation of the Sunshine Law, Council members should forward emails to be reviewed by all Council members to the Village Manager who will then disseminate the email to the Council members. This will avoid the opportunity for inappropriate exchanges between Council members regarding the members' responses or comments. P: \DOCS\13153\00001 \MEM\11 G0769. DOC Roberts Rules of Order 66. Nominations and Elections. Before proceeding to an election to fill an office it is customary to nominate one or more candidates. This nomination is not necessary when the election is by ballot or roll call, as each member may vote for any eligible person whether nominated or not. When the vote is viva voce (living voice) or by rising, the nomination is like a motion to fill a blank, the different names being repeated by the chair as they are made, and then the vote is taken on each in the order in which they were nominated, until one is elected. The nomination need not be seconded. Sometimes a nominating ballot is taken in order to ascertain the preferences of the members. But in the election of the officers of a society it is more usual to have the nominations made by a committee. When the committee makes its report, which consists of a ticket, the chair asks if there are any other nominations, when they may be made from the floor. The committee's nominations are treated just as if made by members from the floor, no vote being taken on accepting them. When the nominations are completed the assembly proceeds to the election, the voting being by any of the methods mentioned under Voting, 46 ,unless the by-laws prescribe a method. The usual method in permanent societies is by ballot, the balloting being continued until the offices are all filled. An election takes effect immediately if the candidate is present and does not decline, or if he is absent and has consented to his candidacy. If he is absent and has not consented to his candidacy, it takes effect when he is notified of his election, provided he does not decline immediately. After the election has taken effect and the officer or member has learned the fact, it is too late to reconsider the vote on the election. An officer-elect takes possession of his office immediately, unless the rules specify the time. In most societies it is necessary that this time be clearly designated.