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HomeMy WebLinkAboutHandouts_Regular_Tab 14_05/10/2007Michas! Couzzo Prom: Hatven3en, Stirling C. [shalversen(g~jones-foster.com] SerYt: Wednesday, April 25, 2007 8:52 PM To: Michael Couzzo Cc: Scott G. Hawkins; Odum, lorrame S. Subject: Village Offioe of Aitomey -revised memorandum Mr. Couzzo, I have made revisions to our memo regarding the oftioe of Village Attorney per your request Your comments have been addressed in the last sectian_ Please let me know if you have any further questions or If you have arty revisions. Thanks, Stirling 4126/200'7 ~~(~.~ s ~ ~~ ~ t ,, ~ I L~ aromas ~os~ Joarts~a & STtJH~35 , P . A . Attorneys and Counselors Memo To: Scott G. Hawkins, Esquire From: Stirling C. Halverson Dafie: April 23, 2007 Subiect: Office of Vlliage Attorney Village Of Tequesta Our Fife No. 13153.1 OFFICE OF VIf1AGE ATTORNEY I. Issues: A. Wt~ther ~e V'~lage Counai should take steps to establish an office of 'Village Attorney,' which position would serve at the pbasure of the Village Council. B. If the V~lage Council wishes to establish ~e office of Viitage Attorney to serve at the pleasuro of the Counc~ll, does the Charter need to be amended or cam the Office be esfiabiished by ordinance. it. Village Charter -- Cun~snt l~r+ovisions: Curnentty, there is no provision oonoeming the office ofi Village Attorney in either the Charter or the Vttlage Code of Ordinances. In addition, the Village Charter provides that the Village Manager wilt be responsible for hiring and firing all Village personnel under the Village's Cow-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: Apri123, 2007 Page 2 Ne~Qr the Council nor any of its members shah ~ arty manner dictate the auoointment or removed of eUty ViYane enwby~. (Emphasis added). Section 3.03 of the Visage Charter provides: The Village Manager shall be the supervisor and manager of all public business and aflalrs of the Vdla~ge, but shall be responsitite to the ~Ilage Council for the admin~ration of a~ the affairs of the Vdtage coming under the V+`~e Manager's jurisdiction. The Vdlage Managers powers and duties shah be as follows: (3) To be responsible for the supervision of all departments of the Village and to see that the taws and ordinances of the Vdlage aro enfiorced. ~~ (8) To appoint, and when deemed necessary for the good of the Village, suspend or remove any Village empbyee and/or department head provided for, by, or under #~ Gharter, or by ordinance, exc~t as provided by Fbrida law, this Charter or panel rules adopted by ordinance or r+esotutton. The ~Itage tNanager may authorize any department head to e~oercise these powers with nespet~ to subordir~tes in that department In 2Ktditiarr, the Charger provides that the Manager shall appoint the Village Clerk who w~ function under the supervision and direction of the Visage tNanager. Sec. 3.04, Vim Charter. Seen 2102 of the Village Code provides that the Department of Corrrrnunity Developmerrt shah be subject to the supervision and control ~ the Village Manager. Section 3.01 of the Village Charger 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 taw or by vote of the Village Council. Section 3.05 of the Village Charter provides that the Village Cour~l may establish separate deRartments by ordinance aril upon r+econxnendation ~ the vNage Manager. However, each separate department head shall be appanged by and subject to the supervision and direction of the Vie Manages: Even if the ViAage Cour~it passed an orclinanoe to create a Legal DePartrnent, the Vitiage attorney as head of that Legal Department, would st~l be subject to appoinfitrent and removal by the ~llagie Manager. Apri123, 2007 Page 3 As these provisions currently exist, the Vifiage Attorney is s to the direction and control of the Village tNanager and can oMy be appointed or removed by the Vifiage Manager. . IN. Charbar Amendment One option the Village Courx+il could corms for estab~shing ~ independent office of Village Atfiomey would be to amend the Charter. A. Euample -Town of Jupiter: For examp~, Set~iort 8 of the Town of Jupiter's Charter provides: The councfi shall appoint a town attorney and such aes fawn attorneys ~ it deems necessary who shah serve at the psure of the and act as legal advisors for the fawn and aH ~ officers on rrtatters relating tD #heir offal duties. Tire town atU.omey shah review the form of a8 contracts to whit~t the town is a party., far legal suf~ieruy, befior+e the contract shall become eve. (Emphasis added). This provision in J~iter's Charter provides a l~>tation on the Taws Manager's athennrise broad authority to appoint and remove Town ert~toyees and officers. The f~lovving provisions of ~ Jupiter Chmter are very simmer to the provisions in the Vilage's Charter prmrid~ for a Couna'1-Mana~r form of goreman©e. Section 5(d)(1) of the Town of Jupiter's Charb~ protri~s: The town manager slmll be the chief adrninishative officer of the town and shah be ale to the counc;it for the administration of aN town affairs. The m shall have the fo~owing powers and duties: The fawn manager shah hire, point or transfer qu~ed persons th the position of deparfinertt heads of the fawn as may be regained. The manager shah appoint, suspend or remove aft town employees and appointive administrative officers provided for by or under than Charter, except as otherwise provided by law, this Charter, or personnel rotes adopted pursuant tD th~ Charter. In addition, Section 3(b} of the Town of Jupiter's Charter provides: Neither the council nor its members shag in any manner dictate the appointment or remavai of any town officers a employees wham the manager or the manager's subordinates are empowered to appoint, but the council shalt have the power to remove the town manager as provided by this Charter and nary express its views and discuss all matters with the April 23, 2007 Page 4 manager. F~ccept for the purp~e of inquiries or investigations under this Charter, the oounc;il end its members shag deal with town offers arxi empbyees sole~r through the manager, and neither the council nor its members shall give orders to any such afFieers or employees either publicly or privately. Under this approach, there ~ no oonfdct cxe~ated by a Charter lion which establishes the Town Attorney ofFiee and the onrerat! structure of the Council-Manager form of government. Only the Town Counc~-not the Town Manager-may appoint or remove the Town Attorney. Under such an approach, however, aN deafMgs with the Town Attiarney would stiN go directly through the Town Manager. B. Apptica~on to VNlage of Tequesta: If decided by the Village Council, the V~age could amend its Charter ba estabgsh the office of Village Attorney and provide that the Atbonrey wiq serve ~ the p~asure of the Council Idea the Town of Jupiter's Charter provision. lire Attorney would still report directly th and be under the supervision of the V'ill'age Manager pursuant to the Council-Manager form of governance. However, the power to appoint or remove the Village Attorney woWd then be vestal in the Village Council rather than the Village Manager. If the Ylta~ Council decides to amend the Charter to add this provision establishing a Village Attorney, Section 2.11 of the Charter wilt also need to tie amended. Currently, this section provides: Neither the Council not any of its members shag in env manner dictatg~ a~rtertt or r+errwval of Tire Council shall have ~l ~- the power to reirrorre the V~age Manager ~ provided by this Charter and may express its views and discuss aq matters with the Manager. Faccept for the peapoee of inqu~ies or investigations under this Charter, the Counc:itt and its members shag deal with Village empbyees solely through the Manager acid neither the Council nor ~s members shag give orders to any such officials or empbyees, either publicly or prnrately. (Emphasis added). This language should be arr~rtde'd to read: Neither the council rror its members shall ~ any manner dictate the appointment or removal of any ViNaage officers ar employees whom the manacier is emp~~1~apgomt. A charter amendmerrt would require the V~lage Council to follow the proeealun3s set forth in § 186.031{1), Fla. Stet. Tha# section provides the following: April 23, 2007 Page 5 The gov~eming body of a munic~aliidy may, by ocdir~nos, ar the electors of a rnunicy may, by petition signed by 10 percent of the registered electors as of the last preceding muniapal general election, submit ~ the electors of said municipat~yy a proposed moment tQ its charter. which amendment rraay be to any part or to ~ of said dealer except that part describing the boundaries of such municipa~ty. The governing body of the muniapa~ty shah pipe the proposed amendment dined in the ordinance or petition to a vole of the electors at the next general election held within the rrxjnicipat#ty or at a special ehec~on caked fior such purpose. Therefore, a referendum would uldmafiely be required to amend the darter, which could be costly and tune consuming. In matting any changes with r+egar+d to the office of Vil~-ge Attorney, oonslderation stroutd be given by Counc~ to the of reporting between the Vie Attorney and the If~~age in order to avoid any potential for miscommun. IV. Ordinance: In flee aihemative, the Village Council may consider enacting ~ orciinance which creates the offroe of Village Attorney. This approad wotdd requ~e a mote of the Counal after proper notice and pu6~ication of the ordinance fdlowed by two readings at public hearings. A. Example -Town oaf Palm Beach: The Town of Patin Bead's Code of ~dinances provides an example of the creation of Town Attorney by ordinance. Section 2-221 provides: There is hereby established the positron of town attorney. Secticm 2-222 provides: Except as othermnse dir+et~ed by the town council, rt shah be the duty of the town attorney to r~epr+eseirt and aidvise the town and its officers ro ~ legal matters. llke the Village of T quests and Jupiter, the Town of Palm Beach's Charter also provides that the Tov~m®A~tanager wiN be tt~e chief adminisfi^ative officer of the Town and supervise the day-today activities of tt~ Tor~m for aN Town oil~oers and empbyees "placed in the large of the Town Manager by o< under this Charter ~ by any action of the Town Counctil.' Sec. 4.01, Town of Palm Beach Charter. Apra 23, 200 Page 6 Section 4.04(a) of the Town of Paim BeadYs Charter provides that the Town Manager shall: appoint and when deemed necessary for the good of the Town, suspend or remove ail Town empbyees and appointwe adrr~nistrative oftiCers provided for by or under this Charier or by ordinance, exc~t as otherwise provided by law, this Charter or personnel rules adopted by order or n~otution. Section 2-136 of the Town of Pain Beach's Code thereafter provides a Nst of certain appointive admanistra~tive officals of ~ Town pursuant to Section 4.04(a) of the Charter. These include Fin~oe Director, Director of Planning, Zor~rtg and Buikfing, Human R Dior, Recreation Director, Chief of Police acrd Fare Chief. Sec. 2- 136, Town of Patin Beach Code. Hovrrever, the Town Attorney ~ not included 'tn th~ list. The Taws Attorney ~ therefore not subject to the Town Manager's appointment or removal powers. The Taws Attorney ~ iradead directed by the Tom Counca. B. AppNcatlon to Vtlfag~ of Tequesta: The ViNage may choose to enact s~naar ordinances cxeating the position of Vatage Attorney. Section 3.03 0# the ViNage Ctsater provides: The VNlage Manager shah be the supervisor and manager of ail public business and affairs of the Vide, but shah be rBSpor~sit~ to the V~tage Council for the administration ~ aN the affairs of the VN~ge doming under the ViNage Manager's , jurisdicfiort. The Vibe Manager's po~++~ers and duties shah be as flows: (6) To appoint, and when deemed necessary for the good of the Viltage, suspend or remove any Village en~byee arxi/or department head provided for, by, or under this Charter, ~ by or+dirrance, exc:eot as otherwise provrded by Florida law this Chaser or oersonnei rules adoubed by ordinance or resolution. (Emphasis added). to addition, Section 1.01 of the Village Charter provides: The municipal goverrrrnen# provided hereby shah be a ViNage Council- AAartager government. Subject only to the tin~atiorts imposed by the constitution and taws of this state and by this Charter, ~ powers of the Village shah be vested &~ an et~,ive Council, Hereinafter referred to ~ the V~lage Courrca, which shah enact local bgistation, adopt budgets, Apn123, 2007 Page 7 =-.~• - - 'r _ --,~ a ` ~~ ana~s ~ !'+et'eirta~er a .~ w ., .. .~ ~. ~ ~,. ~ ~.:~ shall Of t11,$ ~Il~ ~ ~ •: ~ F _ -. _, -.- _.,_ . _. ~ _ .. a~ ~r~ar. ass sr~ ~ mary be aet forth by - == >-nom=,~ The mdfC~fOt1 of Secdor~ 3. iS that the V"$ge ~na~e~s s°~ ~` to ap`~~ ~=~~~ a _ _ _ ~ - ~ , ~ _ ~_ .-~ . ~~.~,~'~~ ~`~.~. F ~'~; by per~rurei rules _. _ ~ }. _ ~ =::~~:~~~=n i ¢ the Gharber about a particular subect, such ~ the Villager Atte~rr~y= ~~e~ the ~ er ordinance. „:f -~ ~ ~_~~_~_ ~. ~~~~ ~`c~~~~:cN has a~ority to establish a new department by -.-- --~- _ y. ,.~ _ _.~ _` . ~~, °r ~;-a ~ ~arter_ If the Ccxmcil establishes a Legal Department by ordmanoe, then the head of the t..ega Department would be the ViNage Attorney. The ViNage oouid then adopt personnel rules by ordinance or resolution which limit the auttwrit)I of the ViNage Manager fio appoint or remove the ~'itlage A-ttomey. Instead, the ordnance or resolution would pro~ride that the Village Atbomey serves at the pleasure of the Vie Council. In order fio comply with the Council-Manager form of governance, the ViNage Attorney would stNi be supervised by the ViNage Manager and wotrid report directly to the Village Manager. Note, howen~er, that Section 2.11 of the ViNage Charter might stiN be problematic. This section provides: Neither the Cotsx:il nor anv of its members shay ~ any manner dilate the annointment or removal of anv ViNas~e errob~ee. (Emphasis added). This language may need to be auneruied ~ recommended in the discussion above, even if the YYage depdes to estabt~h the office of V~age At6omey by ordinance rather than dtiarter aurrendrrrent. In order to amend this charter provision, fine Village would still be reque~ed bo hold a re6erend~n. To avail this probierrr, the ordinance shoukt refer th the Village Attorney ~ an °offioer" ratl'Mer than an "employee' o€ the V~age. In making any changes with regard to the office of VrNage Attorney, consideration should be given by Council fio the Nees of rreporting betwosen the V~ilage Attorney and the Village in order to avoid any pofierrtiai fior miscommunication. Apri123, 2007 Page 8 V. Resolution or Persarnei Rollcy: The Council may ermine that it is not necessary in create an "Office of Vitl~e . __ -~= = v=~ £ -a:. or Cow o~ zrrdir~anoes. munic~al#ies such as Town of .9t~piter Island and the Town of Gulf ~m have charters which do not include :--'~~ ~~ ;vim torn a~o,:~y a~ asp Aoffice." Dior do they indude any refierenoe ~ the town attorney in the ordinances_ This issue can be treated as a pokcy issue without the nod #or amending the charter or ordinances. ' For example, the V~age Council may choose instead to adopt a policy by r~esokrtion to ~ro~~e that the appoin#r~n# or r+ernoval of the V Atton~e°y by the V~12tge AAanager wig only be approved pursuit to a majority vow of the Council. As an ~tdependent contractor having a cor~aduai re~ttior~ship with the Village, the Village Attorney ~ not currently c~nsidened an °offioer," "head of department" or "empbyee" under the V~llsge Charter or Code. Therefore, the poky would not conflict with the Viler N~nagei's author~y to ~po~t and rerrtove those other appointive o< employee positi~s within the Village. The Village Att+~ney would std report d- to the YrNage Manager in accondemce w~h the Council-NAanager form ofi ~vemanoe. P:IDOCS`11315.i1000011MEIM1 t t.S9'12. DOC