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HomeMy WebLinkAboutDocumentation_Regular_Tab 14_05/10/2007JONE S FOSTER JOHNSTON & STUBBS, P.A. Attorneys and Counselors Memo To: Michael Couzzo From: Scott G. Hawkins and Striling C. Halversen Date: April 26, 2007 Subject: Office of Village Attorney Village of Tequesta Our File No. 13153.1 ANALYSIS RE: OFFICE OF VILLAGE ATTORNEY Introduction At the April Village Council Meeting, the undersigned was directed to review the issue of whether an amendment to the Village Charter would be required if the Village Council chose to establish the office of Village Attorney to serve at the pleasure of the Village Council. In this regard, questions were also presented during the meeting as to whether such a structure could be implemented in a different manner. Per such direction, the following issues were considered and our analysis appears below: I. Issues: A. Whether the Village Council should take steps to establish an office of "Village Attorney," which position would serve at the pleasure of the Village Council. B. If the Village Council wishes to establish the office of Village Attorney to serve at the pleasure of the Council, does the Charter need to be amended or can the Office be established by ordinance. II. Village Charter -Current Provisions: April 23, 2007 Page 2 Currently, there is no provision concerning the office of Village Attorney in either the Village Charter or the Village Code of Ordinances. In addition, the Village Charter provides that the Village Manager will be responsible for hiring and firing all Village personnel under the Village's Council-Manager form of governance. The Charter expressly provides that the Village Council will not have the authority to dictate the appointment or removal of any Village employee. For example, Section 2.11 of the Village Charter provides: Neither the Council nor any of its members shall in any manner dictate the appointment or removal of any Village employee. (Emphasis added). Section 3.03 of the Village Charter provides: The Village Manager shall be the supervisor and manager of all public business and affairs of the Village, but shall be responsible to the Village Council for the administration of all the affairs of the Village coming under the Village Manager's jurisdiction. The Village Manager's powers and duties shall be as follows: (3) To be responsible for the supervision of all departments of the Village and to see that the laws and ordinances of the Village are enforced. **** (6) 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. The Village Manager may authorize any department head to exercise these powers with respect to subordinates in that department. In addition, the Charter provides that the Village Manager shall appoint the Village Clerk who will function under the supervision and direction of the Village Manager. Sec. 3.04, Village Charter. Section 2-102 of the Village Code provides that the Department of Community Development shall be subject to the supervision and control of the Village Manager. Section 3.01 of the Village Charter provides: Village administration shall include a Village Manager, a Village Clerk and such other department heads as may be provided for by this Charter, Florida law or by vote of the Village Council. April 23, 2007 Page 3 Section 3.05 of the Village Charter provides that the Village Council may establish separate departments by ordinance and upon recommendation of the Village Manager. However, each separate department head shall be appointed by and subject to the supervision and direction of the Village Manager. Even if the Village Council passed an ordinance to create a Legal Department, the Village Attorney as head of that Legal Department, would still be subject to appointment and removal by the Village Manager. As these provisions currently exist, the Village Attorney is subject to the direction and control of the Village Manager and can only be appointed or removed by the Village Manager. III. Charter Amendment: One option the Village Council could consider for establishing an independent office of Village Attorney would be to amend the Charter. A. Example -Town of Jupiter: For example, Section 6 of the Town of Jupiter's Charter provides: The council shall appoint a town attorney and such assistant town attorneys as it deems necessary who shall serve at the pleasure of the council and act as legal advisors for the town and all its officers on matters relating to their official duties. The town attorney shall review the form of all contracts to which the town is a party, for legal sufficiency, before the contract shall become effective. (Emphasis added). This provision in Jupiter's Charter provides a limitation on the Town Manager's otherwise broad authority to appoint and remove Town employees and officers. The following provisions of the Jupiter Charter are very similar to the provisions in the Village's Charter providing for aCouncil-Manager form of governance. Section 5(d)(1) of the Town of Jupiter's Charter provides: The town manager shall be the chief administrative officer of the town and shall be responsible to the council for the administration of all town affairs. The manager shall have the following powers and duties: The town manager shall hire, appoint or transfer qualified persons to the position of department heads of the town as may be required. The manager shall appoint, suspend or remove all town employees and appointive administrative officers provided for by or under this Charter, except as otherwise provided by law, this Charter, or personnel rules adopted pursuant to this Charter. April 23, 2007 Page 4 In addition, Section 3(b) of the Town of Jupiter's Charter provides: Neither the council nor its members shall in any manner dictate the appointment or removal of any town officers or employees whom the manager or the manager's subordinates are empowered to appoint, but the council shall have the power to remove the town manager as provided by 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 town officers and employees solely through the manager, and neither the council nor its members shall give orders to any such officers or employees either publicly or privately. Under this approach, there is no conflict created by a Charter provision which establishes the Town Attorney office and the overall structure of the Council-Manager form of government. Only the Town Council-not the Town Manager-may appoint or remove the Town Attorney. Under such an approach, however, all dealings with the Town Attorney would still go directly through the Town Manager. B. Application to Village of Tequesta: If decided by the Village Council, the Village could amend its Charter to establish the office of Village Attorney and provide that the Attorney will serve at the pleasure of the Council like the Town of Jupiter's Charter provision. The Village Attorney would still report directly to and be under the supervision of the Village Manager pursuant to the Council-Manager form of governance. However, the power to appoint or remove the Village Attorney would then be vested in the Village Council rather than the Village Manager. If the Village Council decides to amend the Charter to add this provision establishing a Village Attorney, Section 2.11 of the Charter will also need to be amended. Currently, this section provides: Neither the Council nor any of its members shall in any manner dictate the appointment or removal of an~lage employee. The Council shall have the power to remove the Village Manager as provided by 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). April 23, 2007 Page 5 This language should be amended to read: Neither the council nor its members shall in any manner dictate the appointment or removal of any Village officers or employees whom the manager is empowered to appoint. A charter amendment would require the Village Council to follow the procedures set forth in § 166.031(1), Fla. Stat. That section provides the following: The governing body of a municipality may, by ordinance, or the electors of a municipality may, by petition signed by 10 percent of the registered electors as of the last preceding municipal general election, submit to the electors of said municipality a proposed amendment to its charter, which amendment may be to any part or to all of said charter except that part describing the boundaries of such municipality. The governing body of the municipality shall place the proposed amendment contained in the ordinance or petition to a vote of the electors at the next general election held within the municipality or at a special election called for such purpose. Therefore, a referendum would ultimately be required to amend the charter, which could be costly and time consuming. In making any changes with regard to the office of Village Attorney, consideration should be given by Council to the lines of reporting between the Village Attorney and the Village in order to avoid any potential for miscommunication. IV. Ordinance: In the alternative, the Village Council may consider enacting an ordinance which creates the office of Village Attorney. This approach would require a vote of the Council after proper notice and publication of the ordinance followed by two readings at public hearings. A. Example -Town of Palm Beach: The Town of Palm Beach's Code of Ordinances provides an example of the creation of Town Attorney by ordinance. Section 2-221 provides: There is hereby established the position of town attorney. Section 2-222 provides: April 23, 2007 Page 6 Except as otherwise directed by the town council, it shall be the duty of the town attorney to represent and advise the town and its officers in all legal matters. Like the Village of Tequesta and Jupiter, the Town of Palm Beach's Charter also provides that the Town Manager will be the chief administrative officer of the Town and supervise the day-to-day activities of the Town for all Town officers and employees "placed in the charge of the Town Manager by or under this Charter or by any action of the Town Council." Sec. 4.01, Town of Palm Beach Charter. Section 4.04(a) of the Town of Palm Beach's Charter provides that the Town Manager shall: appoint and when deemed necessary for the good of the Town, suspend or remove all Town employees and appointive administrative officers provided for by or under this Charter or by ordinance, except as otherwise provided by law, this Charter or personnel rules adopted by ordinance or resolution. Section 2-136 of the Town of Palm Beach's Code thereafter provides a list of certain appointive administrative officials of the Town pursuant to Section 4.04(a) of the Charter. These include Finance Director, Director of Planning, Zoning and Building, Human Resources Director, Recreation Director, Chief of Police and Fire Chief. Sec. 2- 136, Town of Palm Beach Code. However, the Town Attorney is not included in this list. The Town Attorney is therefore not subject to the Town Manager's appointment or removal powers. The Town Attorney is instead directed by the Town Council. B. Application to Village of Tequesta: The Village may choose to enact similar ordinances creating the position of Village Attorney. Section 3.03 of the Village Charter provides: The Village Manager shall be the supervisor and manager of all public business and affairs of the Village, but shall be responsible to the Village Council for the administration of all the affairs of the Village coming under the Village Manager's jurisdiction. The Village Manager's powers and duties shall be as follows: (6) 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 . . April 23, 2007 Page 7 otherwise provided by Florida law, this Charter or personnel rules adopted by ordinance or resolution. (Emphasis added). In addition, Section 1.01 of the Village Charter provides: The municipal government provided hereby shall be a Village Council- Manager government. Subject only to the limitations imposed by the constitution and laws of this state and by this Charter, all powers 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 as hereinafter prescribed. Except as limited in this Charter, the Village Manager shall execute the laws and administer the government of the Village. All powers of the Village shall be exercised in the manner provided by this Charter or if the manner be not provided then in such manner as may be set forth by ordinance. (Emphasis added). The indication of Section 3.03 is that the Village Manager's authority to appoint and remove Village employees and department heads may be limited by personnel rules adopted by ordinance or resolution. If there is no mention in the Charter about a particular subject, such as the Village Attorney, then the subject can be governed by ordinance. In addition, the Village Council has the authority to establish a new department by ordinance. See Sec. 3.01 and Sec. 3.05, Village Charter. If the Council establishes a Legal Department by ordinance, then the head of the Legal Department would be the Village Attorney. The Village could then adopt personnel rules by ordinance or resolution which limit the authority of the Village Manager to appoint or remove the Village Attorney. Instead, the ordinance or resolution would provide that the Village Attorney serves at the pleasure of the Village Council. In order to comply with the Council-Manager form of governance, the Village Attorney would still be supervised by the Village Manager and would report directly to the Village Manager. Note, however, that Section 2.11 of the Village Charter might still be problematic. This section provides: Neither the Council nor any of its members shall in any manner dictate the appointment or removal of any Village employee. (Emphasis added). This language may need to be amended as recommended in the discussion above, even if the Village decides to establish the office of Village Attorney by ordinance rather than charter amendment. In order to amend this charter provision, the Village would still April 23, 2007 Page 8 be required to hold a referendum. To avoid this problem, the ordinance should refer to the Village Attorney as an "officer" rather than an "employee" of the Village. In making any changes with regard to the office of Village Attorney, consideration should be given by Council to the lines of reporting between the Village Attorney and the Village in order to avoid any potential for miscommunication. V. Resolution or Personnel Policy: The Council may determine that it is not necessary to create an "Office of Village Attorney" in the Charter or Code of Ordinances. Other municipalities such as the Town of Jupiter Island and the Town of Gulf Stream have charters which do not include references to the town attorney as an "office." Nor do they include any reference to the town attorney in the ordinances. This issue can be treated as a policy issue without the need for amending the charter or ordinances. For example, the Village Council may choose instead to adopt a policy by resolution to provide that the appointment or removal of the Village Attorney by the Village Manager will only be approved pursuant to a majority vote of the Council. As an independent contractor having a contractual relationship with the Village, the Village Attorney is not currently considered an "officer," "head of department" or "employee" under the Village Charter or Code. Therefore, the policy would not conflict with the Village Manager's authority to appoint and remove those other appointive or employee positions within the Village. The Village Attorney would still report directly to the Village Manager in accordance with the Council-Manager form of governance. P \DOCS\13153\00001 \MEM\11 L5912 DOC