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HomeMy WebLinkAbout2010-0727 Special City Commission Meeting I:~~ ~ SUMMARY MINUTES Special City Commission Meeting Tuesday, July 27, 2010,12:00 p.m. City of Sunny Isles Beach, Florida 3b 1/~J()) ATTENTION ALL LOBBYISTS: CITY LAW REOUIRES YOUR REGISTRATION PR .. .._u'~ m LOBBYING ACTIVITIES BEFORE CITY STAFF, BOARDS, COMMITTEES OR THE CITY COMMISSION. PLEASE CONTACT THE CITY CLERK FOR FORMS AND ADDITIONAL INFORMATION. AGENDA 1. CALL TO ORDER / ROLL CALL OF MEMBERS The meeting was called to order by Mayor Edelcup at 12:00 p.m. with the following officials present: Mayor Norman S. Edelcup Vice Mayor Lewis J. Thaler [via telephone] Commissioner Roslyn Brezin Commissioner Gerry Goodman Commissioner George "Bud" Scholl City Manager Rick Conner City Attorney Hans Ottinot Assistant City Manager/Services Jorge Vera City Clerk Jane A. Hines, CMC Assistant City Attorney Fernando Amuchastegui 2. PLEDGE OF ALLEGIANCE Action: City Historian Richard Schulman led the Pledge of Allegiance to the flag. Mayor Edelcup gave opening remarks of decorum. ORDER OF BUSINESS (Additions/Deletions/Amendments) Request to Add-On: Item 4A. Ordinance on 1 sl Reading re: Post Employment Restrictions under the City Ethics Code. Action: Mayor Edelcup noted the above change to the agenda. Commissioner Scholl moved and Commissioner Brezin seconded a motion to approve the above change to the agenda. The motion was approved by a voice vote of 5-0 in favor. 3. ORDINANCES FOR SECOND READING 3A. An Ordinance of the City of Sunny Isles Beach, Florida, Authorizing the Issuance of a Stormwater Utility Revenue Bond, Series 2010, of the City of Sunny Isles Beach, Florida in a Principal Amount of$3,500,000.00 for the Purposes of Financing All or a Portion of the Costs of Certain Improvements to the Stormwater Utility System and Paying Certain Costs Related Thereto; Determining the Need for a Negotiated Sale of Such Bond to Branch Banking and Trust Company; Providing for the Terms and Payment of Such Bond and for the Rights, Remedies and Security of the Owners Thereof; Making Certain Covenants Relating to the Issuance of Such Bond; Designating Such Bond as a "Qualified Tax-Exempt Obligation" within the Meaning of Section 265(b)(3) ofthe Internal Revenue Code of 1986, as Amended; Authorizing the Proper Officers of the City to Do All Other Things Deemed Necessary or Advisable in Connection with the Issuance of Such Bond; and Providing for an Effective Date. (First Reading 07/15/1 0) Summary Minutes: Special City Commission Meeting July 27, 2010 Sunny Isles Beach, Florida Action: City Clerk Hines read the title, and Assistant City Manager/Finance MinaI Shah reported that this is a request to enter into a loan agreement with BB&T for $3.5 Million to be used for the payback to the Capital Projects Fund of$2.5 Million and for other stormwater related Capital expenditures. The term of the loan is for 15 years at an interest rate of 4.02%, which is currently locked in and is good until August 13,2010, and our expectant closing date is on Tuesday, August 10,2010. Public Speakers: none Commissioner Goodman moved and Commissioner Brezin seconded a motion to adopt the ordinance. Ordinance No. 2010-348 was adopted by a roll call vote of 5-0 in favor. Vote: Commissioner Brezin ~ Commissioner Goodman ~ Commissioner Scholl yes Vice Mayor Thaler ~ Mayor Edelcup yes 4. ORDINANCES FOR FIRST READING 4A. Add-On: An Ordinance of the City Commission of the City of Sunny Isles Beach, Florida, Amending Chapter 33 of the Code of Ordinances Pertaining to Post Employment Restrictions Under the City Ethics Code; Providing for Purpose and Legislative Intent; Providing for Rules of Construction; Providing for Severability; Providing for Applicability; Providing for Inclusion in the Code; Providing for Repealer; Providing for an Effective Date. Action: [City Clerk's Note: Distributed prior to meeting. See additional action under Item 2, opening remarks by Mayor Edelcup.] City Clerk Hines read the title, and City Attorney Ottinot reported noting that shortly after incorporation the City Commission adopted its own Ethics Code because it imposes stricter guidelines than the Code of Ethics of Miami-Dade County. The City Code imposes a two-year ban on former elected officials and employees, the language is clear, and the two-year ban is the law. The only exception under the current Code is non-profit exception, which applies to former employees employed by non-profit and he/she represents a non-profit in hislher official capacity. The City has not issued an opinion in respect to non-profit exemption however the County Ethics Commission has strictly construed that exemption to effectuate the purpose of the two-year ban. For example, the County Ethics opined that an attorney cannot represent a non-profit before a City Commission that he has served as Commissioner because of the two-year ban. Over the years the City Attorney has consistently opined that former elected officials and employees cannot appear in any capacity for a City Commission until they have served the two-year cooling period. For example, he advised his predecessor that there was no quasi-judicial exception for lawyers under the City Ethics Code. City Attorney Ottinot said that this Ordinance is being presented to reaffirm and clarify the post employment restrictions of the City. It will affirm the two-year ban as the law of the City except the following five exemptions: 1) non-profit exemption; 2) judicial exemption if an employee is served with a subpoena in a court action; 3) zoning exemption if a former 2 - Summary Minutes: Special City Commission Meeting July 27,2010 Sunny Isles Beach, Florida employee is a resident of the City and has received a notice pursuant to the City regulation; 4) private property exemption; and 5) the City Commission may waive the two-year ban if the former employee's testimony is of public interest and his testimony is needed to clarify a public record. City Attorney Ottinot said the Ordinance also clarifies the City's position on the recent opinion issued by the Ethics Commission of Miami-Dade County post employment restriction. In that opinion the Ethics Commission opined that a former employee can testify as an alleged fact witness in a quasi-judiciary notwithstanding the two-year ban. He strongly disagrees because the language in the County Code does not provide for such an exemption. More importantly, the Opinion that was issued is unprecedented, clearly inconsistent with an opinion issued by the Ethics Commission on the subject of the two-year ban. City Attorney Ottinot handed out a Memorandum summarizing all 28 opinions issued in a 12-year span by the Ethics Commission [Review of County Ethics Commission Opinions- Two-Year Post Employment Restriction). In all of these opinions they construe the two-year ban, in none of those opinions did the County Ethics Commission create a fact witness exemption or any type of exemption with respect to quasi-judicial hearing. Significantly the whole conflict as it is proposed envisioned in the County Ethics Code which was included in this final report as prepared by the Ethics Task Force. The Commission gave him permission to serve on the Task Force, and the Task Force primary responsibility was to eliminate loop holes in the County Ethics Code. Clearly he believes that the opinion that was issued by the Ethics Commission is inconsistent with the work that was done by the Task Force. It creates another loop hole in respect to the two-year ban. He believes that the opinion issued by the Ethics Commission is not only inconsistent with the prior opinions but will create additional loop holes. The proposed amendment Ordinance will re-affirm the City post employment regulations to clarify the City's position in respect to this opinion. Public Speakers: Robert Meyers; Robert Meyers, Miami-Dade Commission on Ethics and Public Trust, said he is here for two reasons: 1) he agrees with City Attorney Ottinot that the City has an absolute right to adopt strong ethics laws than the County Commission adopts, there is no dispute about that; and 2) there is also no dispute about the fact that the Miami-Dade Ethics Commission has a legal authority to interpret the City's Ethics Code. Last week there was a question presented to the Miami-Dade Ethics Commission that was analyzed under the County's Ethics Code, and Victoria Frigo, their staff attorney, prepared the draft opinion which the Ethics Commission adopted. There was never any attempt at that meeting to analyze the City's Ethics Code. The only way that would happen is if a party who we have jurisdiction over comes to our Ethics Commission and says that they would like an opinion with respect to the City's Ethics Code, and if that occurs they will issue an opinion. Obviously, they know what the City's Code says depending on what happens here today and at second reading, we will have further evidence of the City's position on the issue. The Ethics Commission generally gives great deference to the opinion of the City Attorney although it is not bound by that. To clarify the record, their opinion was just to construe the County Ethics Code, if we are asked to construe the City Ethics Code, we will do so taking into account what the City Attorney has said and any arguments that are brought forward by the party that asked for the opinion. 3 Summary Minutes: Special City Commission Meeting July 27, 2010 Sunny Isles Beach, Florida Mayor Edelcup asked ifit isn't irrelevant to examine it under the County Ethics Code ifthe City has its own Code, why would you measure it under a weaker or a different standard. It doesn't make sense that you wouldn't use our Code to make a determination. Mr. Meyers said if a requester says he wants an opinion under the County Ethics Code, we can't say that we are going to analyze it under the City Code. It is based on the request that is presented to us. Mayor Edelcup said aren't you supposed to be a funnel to make sure when you are rendering an opinion that you are rendering an opinion based on our Code, and Mr. Meyers said no. Mayor Edelcup said then that you become irrelevant because if someone is asking you to determine whether or not there is an ethics violation, how can you measure it against a standard that isn't the City standard. Mr. Meyers said because the County standard applies to the City as well, and Mayor Edelcup said if ours is stronger, you are giving half an answer. Mr. Meyers said assuming it is stronger, you can adopt standards that are stronger, you are drawing a conclusion that it automatically is, and it would be up to them to make that. Mayor Edelcup said ifhe came to the Ethics Commission as an individual with a complaint, he would expect them to say, I have to measure it under the standard from which their complaint is being filed, and if that standard was not as strong as the County's, then you can superimpose the County's but he doesn't understand how you could, and he knows at the end of his opinion you said the County's standard is such that I am giving you an answer but the City Attorney and the City has a right to have a different standard. Mr. Meyers said he wouldn't construe with that, but in terms of, let's say that somebody has a question about their ethics, there may be even a State standard as well, and we make it very clear that we are analyzing the County Code, we may analyze under the City Code if one exists but you may have to go to the State of Florida and ask the Florida Commission on Ethics for an opinion as well, and so there is always a disclaimer in our opinions that it is being analyzed under this standard or that, we don't have the authority to analyze the State Ethics Code. In retrospect it would have been much simpler had we analyzed it under the County Code and the City Code, but he is not going to say that we automatically accept the conclusion that the law that you have on the books today is stricter than the County. Mr. Meyers said his attorney will prepare an opinion if that comes forward, and the Ethics Commission will ultimately decide what that opinion should be in light of the City standard but we don't want to waste anyone's time having to bring your City Attorney and the requester back for another go around. When it was presented to the Ethics Commission there was nothing written in front of them to vote on with respect to the City Code, and in fact he had told them that they can't rule on the City Code because that is not properly before you. In retrospect it would have been better if we had analyzed it under both standards at one meeting. Mayor Edelcup said if you did would you, and Mr. Meyers said he thinks it would have been of value to do it that way. Mr. Meyers said in terms of you reaffirming of what the intent of your legislation is, it will help them a great deal. Mayor Edelcup said he thinks it is important because you and your group of people basically stand out in the County and everyone assumes, and rightly so, that you are looking out for their best interest and trying to maintain the ethics at the highest standard possible. In this particular case it may have sent the wrong signal, and he would hope that in the future whoever came to you, you would use the standard from that area to comment under both. Commissioner Scholl said if somebody comes to you with a problem and is trying to get 4 Summary Minutes: Special City Commission Meeting July 27, 2010 Sunny Isles Beach, Florida clarity, you don't want to take the position that if we interpret the County Code, that is the extent of our job. You would want to say, for us to interpret the County Code only is not going to solve your problem. We are back to the difference of something being legally correct and sufficient, and something being practically correct and sufficient to solve someone's issue, and he thinks the Mayor's frustration lies in the fact that somebody walked in and asked a question and then is taking that answer as the gospel, and it doesn't really solve their problem because they may not be aware that we have our own standard on the books that might supersede your standard or be more restrictive or not, and that is not really even up to you to decide, but it certainly is up to the County to say okay, like you said on the bottom of your letter, but maybe put that front and center that says here is our opinion on our Code, now you need to go to the City and get one from them because they could conflict. Mr. Meyers said he could agree with about 95% of what you said, discussion came up and he thinks that the requester was well aware of the fact that there was a City Ethics Code and a provision that arguably was on point. We do have the authority to interpret your City Code and we probably should have done it at our July meeting and not hold it over to August and there may have been a completely different outcome, and he can't speak to the Ethics Commission but that has happened before where other cities or requesters have come to us and we say under the County Code it is not a conflict, under the City Code it is, and so that could be the conclusion that is drawn by the Ethics Commission and he is here because we have great respect for the work that City governments do and certainly it is your legislation, it is not ours. Our job is simply to interpret it, and ifthe plain letter ofthe law says something, we are not going to go outside the boundaries of that especially involving a City Code. We are more likely to do that in the County when something is unclear but you are making it painfully clear what your rule is. Commissioner Goodman asked why there can't be one Code in the whole State, he is asking because he had difficulty with Mr. Meyers at one time, and he wanted to settle, he never pleaded guilty and they fined him. The State of Florida took it up and they found him not guilty, and he came to Mr. Meyers and asked him to give him back the fine he paid and he refused. If there was one Ethics Committee and it was handled properly by one Ethics Committee, he would have been found not guilty and it would have been put to sleep. Mr. Meyers responded that the local government, County or municipal government can legislate in areas that are untouched by State law, and so ifthe State Ethics Code only goes so far, the County can impose additional ethical standards on its elected officials, its public officials, just like the City of Sunny Isles Beach can adopt standards that are stricter than the County's. The State law that exists applies to everybody, the people in Miami-Dade has to follow a second set of rules if they work for government or are elected, and people in Sunny Isles Beach has a third set of standards, and one would hope that the second and third are stricter than the first, but sometimes they cover areas that are not covered and State law does not cover the area that Miami-Dade County Ethics Commission looked into with respect to Commissioner Goodman's matter, and so that is why they dismissed it because it is an area that they don't enforce. So our County Commission says we can pass laws in an area that are untouched by State law and that is what happened, and that is what you are attempting to do here today. Under our system of government in the State of Florida, municipalities and local governments and especially a County like Miami-Dade which is a Home Rule Chartered County has the legal authority to adopt standards on its residents, on its public officials that 5 - Summary Minutes: Special City Commission Meeting July 27, 2010 Sunny Isles Beach, Florida State law does not cover for other employees and other officials. Commissioner Goodman said the first time he didn't have a lawyer but the second time he did and they investigated it and maybe that is why that happened, and Mr. Meyers said he can assure him that the State did not have the legal authority to enforce the local rules, and so it is a local ordinance that led to the charges not State law. City Attorney Ottinot clarified the record that at a recent Ethics Commission meeting he left with the impression that the Ethics Commission was going to construe the Ethics Code with respect to the post employment restriction, and based on that impression and after several conversations with Mr. Meyers and Ms. Frigo, it is his belief that our Ethics Code would be presented at the August meeting, opinion wise, by the Ethics and that is why we are here today. He didn't feel a comfort level from speaking to staff at the Ethics Commission with respect to our Code, and he believes that lawyers, when you are speaking of legislation, and the legislative body clearly intends its purpose and the language is clear only to let the legislative party conduct its business not lawyers construing in a way that it is not consistent with the purpose. Therefore, his thinking and why he composed this ordinance was that he didn't get a comfort level from Mr. Meyers, and he would have to reappear again to justify our opposition even though he had written an opinion issued with respect to the same issue, that his opinion, while he may give weight to my opinion may not be final in respect to our Code. There is a general rule oflaw that when you are construing an agency code deference, not great deference, nevertheless, he thinks it is better to have this Commission clearly unequivocally state what the law is in the City of Sunny Isles Beach. Commissioner Brezin asked if we apply this ordinance to a situation and it doesn't hold any teeth, can we be overruled by the County Ordinance, and Mr. Meyers said it appears on its face that there are fewer exceptions in your ordinance than in the County Ordinance, and so no, the County Ordinance would not overrule the City Ordinance. The City Ordinance would be construed on its own because we have already construed the County Ordinance, and it is a completely different set of analysis, we are doing a one and one meeting and the second one at another meeting which we all agreed was a waste of time but that is what is going to happen if it is presented to us. Just to reiterate that Mr. Ottinot is correct, we will give deference to his position, his opinion, but it is not binding on us. Commissioner Scholl said he agrees with this Ordinance and that a cooling off period is important because he thinks this clarification is more of a witness type of a situation as opposed to a lobbyist. We have been very clear that you can't lobby after you have been an employee of the City or an elected official for at least two years. It looks like the clarification here is more and you get involved in proceedings, the fact is from his respective, when somebody leaves the City who used to work here, to a certain extent he thinks they are tainted, and so they could come and advocate on behalf of the City or against the City in a proceeding, either way he thinks their impartiality without a cooling off period is probably questionable. He is glad we are getting this clarity because it was ambiguous, and people are looking for guidance, and these clarifications are warranted. City Attorney Ottinot said in response, while the term lobby is used in the Ordinance, that term is construed to go beyond the traditional lobbyist activities and the opinions of the Ethics Commission support that, and so basically these amendments clarify activities ofthis 6 - Summary Minutes: Special City Commission Meeting July 27, 2010 Sunny Isles Beach, Florida two-year ban. The only question he has for Mr. Meyers is there has been a requester as you indicated with respect to construing our Code, and now you have heard and probably will receive confirmation that this Commission passed this Ordinance on first reading, will your opinion be based on this Ordinance? His position is that the current Ordinance and this Amendment in terms of the two-year ban, are the same, and he just wants to know what course the Ethics Commission will proceed with. Mr. Meyers said based on your presentation that you are simply reaffirming an Ordinance that you have on the books, the analysis would be based on that Ordinance that is on the books. However, if you are adopting a new standard and saying apply this new standard to this old situation, he is not sure about that. City Attorney Ottinot said, here is my opinion under the law, in fact with respect 100% that this is a reaffirmation about our position but even if we had a new standard it would apply to any conduct previously because the law only protects the vested rights, you can apply an ordinance retroactively to any conduct unless those rights are vested. Commissioner Brezin moved and Commissioner Scholl seconded a motion to approve the proposed ordinance on first reading. The motion was approved by a roll call vote of 5- o in favor. City Attorney Ottinot said that we have a closing on the loan scheduled on August 10,2010, and we could have second reading on that date at 1:00 p.m. Second reading, public hearing will be held at a Special City Commission Meeting on Tuesday, August 10, 2010, at 1:00 p.m. V ote: Commissioner Brezin ~ Commissioner Goodman ~ Commissioner Scholl ~ Vice Mayor Thaler ~ Mayor Edelcup ~ 5. ADJOURNMENT Mayor Edelcup adjourned the meeting at 12:36 p.m. Respectfully submitted by: ,~A~ Jane A. Hines, CMC, City Clerk ,Approved by the City Commission on Sept. 16,2010 1 ,. 7 Preview Page 1 of 1 City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 (305) 947-0606 City Hall (305) 949-3113 Fax MEMORANDUM TO: The Honorable Mayor and City Commission FROM: Jane A. Hines, CMC, City Clerk DATE: 9/1612010 RE: Summary Minutes for the July 27, 2010 Special City Commission Meeting RECOMMENDATION: Attached for your consideration are the Summary Minutes for the July 27, 2010 Special City Commission Meeting. REASONS: N/A ATTACHMENTS: . Summary Minutes http://sibagenda.sibfl.net/agenda/Preview.aspx?ItemID=317 &MeetingID=O&MeetingDate... 8/12/2010