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Agenda 05/12/2015 Item #16F2EXECUTIVE SUMMARY Recommendation pursuant to Collier County Resolution No. 95-632, that the Board of County Commissioners acknowledges the selection of outside counsel and approves payment of counsel identified in the back-up materials to this item to represent Leo Ochs and Joanne Markiewicz in the case styled Dwight E. Brock v. Leo E. Ochs, Jr., as Manager/Administrator of Collier County and Joanne Markiewicz, as Purchasing and General Services Division Director, Case No. 11-2015-CA-000595-0001-XX, in the Circuit Court of the Twentieth Judicial District in and for Collier County, Florida, and in addition to waive the Purchasing Policy to the extent it applies to the selection of outside counsel and/or otherwise exempt the selection of outside counsel from competition pursuant to Purchasing Ordinance Section Eleven Procurement of Professional Services. ___________________________________________________________________________________ OBJECTIVE: For the Board to acknowledge the selection of outside counsel by defendants Leo Ochs and Joanne Markiewicz as previously authorized and affirm the decision to pay for the reasonable costs of that defense. CONSIDERATIONS: Collier County Resolution No. 95-632 sets forth the Board’s policy with regard to providing a defense and paying legal expenses of County Commissioners, County staff and advisory board members (“County persons”) who are sued individually in lawsuits. A copy of both the complaint and Resolution No. 95-632 are attached. In accordance with Resolution No. 95-632 and current Florida law, County persons sued in civil actions and civil rights lawsuits may be provided representation if the litigation involving the person(s) to be represented: (1) arose out of or in connection with the performance of official duties and (2) while the County person was serving a valid public purpose. On April 28, 2015, the Board authorized defendants Ochs and Markiewicz to retain outside counsel to provide individual legal representation in the recent suit commenced by the Clerk of Courts and to pay for the costs of that defense. A copy of the separate retention agreements is included as back-up to this item. FISCAL IMPACT: Uncertain at this time. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this Executive Summary. RECOMMENDATION : Pursuant to Collier County Resolution No. 95-632, that the Board of County Commissioners acknowledges the selection of outside counsel and approves payment of counsel identified in the back-up materials to represent Leo Ochs and Joanne Markiewicz in the case styled Dwight E. Brock v. Leo E. Ochs, Jr., as Manager/Administrator of Collier County and Joanne Markiewicz, as Purchasing and General Services Division Director, Case No. 11-2015-CA-000595- 0001-XX, in the Circuit Court of the Twentieth Judicial District in and for Collier County, Florida, and in addition to waive the Purchasing Policy to the extent it applies to the selection of outside counsel Packet Page -1025- 5/12/2015 16.F.2. a nd/or otherwise exempt the selection of outside counsel from competition pursuant to Purchasing Ordinance Section Eleven Procurement of Professional Services. SUBMITTED BY: Leo Ochs and Joanne Markiewicz Packet Page -1026- 5/12/2015 16.F.2. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.F.16.F.2. Item Summary: Recommendation pursuant to Collier County Resolution No. 95-632, that the Board of County Commissioners acknowledges the selection of outside counsel and approves payment of counsel identified in the back-up materials to this item to represent Leo Ochs and Joanne Markiewicz in the case styled Dwight E. Brock v. Leo E. Ochs, Jr., as Manager/Administrator of Collier County and Joanne Markiewicz, as Purchasing and General Services Division Director, Case No. 11-2015-CA-000595-0001-XX, in the Circuit Court of the Twentieth Judicial District in and for Collier County, Florida, and in addition to waive the Purchasing Policy to the extent it applies to the selection of outside counsel and/or otherwise exempt the selection of outside counsel from competition pursuant to Purchasing Ordinance Section Eleven Procurement of Professional Services. Meeting Date: 5/12/2015 Prepared By Name: BrockMaryJo Title: Executive Secretary to County Manager, County Managers Office 5/6/2015 4:52:04 PM Submitted by Title: Executive Secretary to County Manager, County Managers Office Name: BrockMaryJo 5/6/2015 4:52:05 PM Approved By Name: KlatzkowJeff Title: County Attorney, Date: 5/6/2015 4:59:52 PM Name: OchsLeo Title: County Manager, County Managers Office Date: 5/6/2015 5:13:39 PM Packet Page -1027- 5/12/2015 16.F.2. Packet Page -1028- 5/12/2015 16.F.2. Packet Page -1029- 5/12/2015 16.F.2. Packet Page -1030- 5/12/2015 16.F.2. Packet Page -1031- 5/12/2015 16.F.2. Packet Page -1032- 5/12/2015 16.F.2. Packet Page -1033- 5/12/2015 16.F.2. Packet Page -1034- 5/12/2015 16.F.2. Packet Page -1035- 5/12/2015 16.F.2. Packet Page -1036- 5/12/2015 16.F.2. Packet Page -1037- 5/12/2015 16.F.2. Packet Page -1038- 5/12/2015 16.F.2. Packet Page -1039- 5/12/2015 16.F.2. Packet Page -1040- 5/12/2015 16.F.2. Packet Page -1041- 5/12/2015 16.F.2. Packet Page -1042- 5/12/2015 16.F.2. Packet Page -1043- 5/12/2015 16.F.2. Packet Page -1044- 5/12/2015 16.F.2. Packet Page -1045- 5/12/2015 16.F.2. Packet Page -1046- 5/12/2015 16.F.2. Packet Page -1047- 5/12/2015 16.F.2. Packet Page -1048- 5/12/2015 16.F.2. Packet Page -1049- 5/12/2015 16.F.2. May 6, 2015 VIA E-MAIL & U.S. MAIL Leo E. Ochs, Jr., County Manager Collier County County Manager's Office 3299 Tamiami Trail East, Suite 202 Naples, FL 34112-5746 Re: Dwight E. Brock vs. Leo E . Ochs, Jr., Et Al. / Case Number 2015CA-0595 (the “Lawsuit”) Dear Mr. Ochs: We are pleased that you wish to engage our Firm to represent you, in your capacity as County Manager for Collier County, in the Lawsuit. From our experience, we have found that clients appreciate a frank and open discussion and understanding of the services that we will perform and the basis upon which they will be expected to pay for those services. This letter is intended to set forth our understanding as to the nature and scope of the legal services we have agreed to render for you, the amount of our fees for those services, the manner in which our fees for those services shall be determined and the terms upon which you will make payment. 1. Nature of Legal Services. Our services will consist of representing you, as County Manager for Collier County , in the Lawsuit, including any appeals and related matters. 2. Fees for Services. You (or the county on your behalf) will be charged and agree to pay a discounted blended rate of $275.00 an hour of attorney time for our services on the basis of hourly rates established Packet Page -1050- 5/12/2015 16.F.2. Leo E. Ochs, Jr., County Manager May 6, 2015 Page 2 of 4 from time to time for the attorneys in our Firm, together with applicable taxes if any. It is contemplated that I, Jamie A. Cole, will have primary responsibility for this matter. It is our practice to charge for actual time expended on your behalf, but not less than 2/10ths of an hour for each activity. 3. Costs. In addition to the attorneys fees discussed in paragraph 2, the firm will add a 2.5% administrative fee to each bill to cover administrative costs such as delivery charges, long distance telephone charges, photocopies (xerox), postage, faxes, and computer research expenses. Non -incidental costs such as court reporter expenses (including cost of transcript and court reporter's fee for attendance), court costs (such as filing fees, service of process, newspaper publication costs, subpoena costs, witness fees, recording fees, etc.), accounting and appraisal fees, expert fees, trial/hearing exhibit costs, investigation costs, and applicable lobbyist registration fees, will continue to be itemized and billed. 4. Payment of Fees and Costs. Our invoices will be submitted to you on a monthly basis and each invoice will be due and payable when rendered. You must understand that if any invoice remains unpaid for more than 30 days after it is rendered, we reserve the right, in our discretion (subject to court approval, if necessary), to cease to provide further legal services to you. You will, however, be liable to us for the payment of any fees earned and any costs incurred by us to that time, together with any applicable taxes. In the event we are ultimately required to bring suit to collect any unpaid fees and costs, you understand that you will be required to pay reasonable attorneys' fees as well as legal interest on the amount of any fees and costs due us. You further understand that we have the right to retain any and all files, papers and other property coming into our possession in connection with our engagement without any liability to you until we have been paid all costs, fees and interest due us under this agreement. You also agree to the imposition of a charging lien for any monies due us on all real and personal property that is preserved, protected or obtained as a result of the representation undertaken herein. Interest at the rate of 12% per annum will be added to any invoice which remains unpaid for more than 30 days after it is rendered. 5. Withdrawal from Representation. We reserve the right to withdraw from representing you if you have misrepresented or failed to disclose material facts to us, or if we disagree about the course of action which should be pursued. 6. Advanced Fees and Costs Deposit. You will not be asked to pay a retainer for this matter. 7. Representation of Other Clients. We are bound by rules of legal ethics not to represent any client if the representation of that client will be directly adverse to the interests of Packet Page -1051- 5/12/2015 16.F.2. Leo E. Ochs, Jr., County Manager May 6, 2015 Page 3 of 4 another client unless each such client consents to such representation after consultation. If this letter is addressed to more than one person, your signature of this letter will constitute such consent from each of you with respect to the matter or matters specifically described in the paragraph of this letter entitled "Nature of Legal Services." Please be advised that from time to time we are called upon by clients to represent them as to requests for various approvals and as to other matters with respect to your City. You recognize and acknowledge that by signing this letter, you will be deemed to have waived any potential conflict of interest in our representation of those clients, and so long as such representation is not in an adversarial position to the City. 8. Fees for Other Services. In the event you ask us to render legal services with respect to other matters, in the absence of a written agreement specifically addressing that representation, the other matters will be handled on an hourly basis, and fees and costs will be payable under the same terms and conditions as provided for in paragraph 2 of this letter. 9. Commencement of Representation. If the foregoing is agreeable to you, please acknowledge your understanding and agreement by signing this letter and delivering it to us, together with payment of the retainer and/or cost deposit set forth above, if any. We appreciate your confidence in our Firm and we assure you that we will make every effort to perform our services in a prompt and efficient manner. Very truly yours, WEISS SEROTA HELFMAN COLE & BIERMAN, P.L. Jamie A. Cole Packet Page -1052- 5/12/2015 16.F.2. Leo E. Ochs, Jr., County Manager May 6, 2015 Page 4 of 4 AGREED AND ACCEPTED on _______________, 2015. LEO E. OCHS, JR., as County Manager for COLLIER COUNTY By:_______________________________________ LEO E. OCHS, JR., as County Manager for COLLIER COUNTY Packet Page -1053- 5/12/2015 16.F.2. Packet Page -1054- 5/12/2015 16.F.2. Packet Page -1055- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 1) EXCERPT TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, April 28, 2015 Excerpt for Item #15 LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special districts as have been created according to law and having conducted business herein, met on this date at 9:00 a.m., in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Tim Nance Donna Fiala Penny Taylor Georgia Hiller Tom Henning ALSO PRESENT: Leo Ochs, County Manager Nick Casalanguida, Deputy County Manager Jeffrey A. Klatzkow, County Attorney Crystal Kinzel, Office of the Clerk of Courts Troy Miller, Communications & Customer Relations Packet Page -1056- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 2) Item #12A RECOMMENDATION PURSUANT TO COLLIER COUNTY RESOLUTION NO. 95-632 THAT THE BOARD OF COUNTY COMMISSIONERS AUTHORIZES THE OFFICE OF THE COUNTY ATTORNEY TO SELECT AND RETAIN OUTSIDE COUNSEL TO REPRESENT COUNTY MANAGER LEO E. OCHS, JR., AS WELL AS PROCUREMENT SERVICES DIRECTOR, JOANNE MARKIEWICZ, WHO ARE BEING SUED BY CLERK OF COURTS DWIGHT E. BROCK IN THE CASE STYLED DWIGHT E. BROCK V. LEO E. OCHS, JR. AS MANAGER/ADMINISTRATOR OF COLLIER COUNTY AND JOANNE MARKIEWICZ, AS PURCHASING AND GENERAL SERVICES DIVISION DIRECTOR, CASE NO. 11-2015-CA- 000595-0001-XX, IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA, AND WAIVE THE PURCHASING POLICY TO THE EXTENT IT MAY APPLY TO THE SELECTION OF OUTSIDE COUNSEL AND/OR OTHERWISE EXEMPT THE SELECTION OF OUTSIDE COUNSEL FROM COMPETITION PURSUANT TO PURCHASING ORDINANCE SECTION ELEVEN PROCUREMENT OF PROFESSIONAL SERVICES, B5, AND TO DIRECT THE COUNTY ATTORNEY TO TAKE ACTION TO INTERVENE IN THIS LITIGATION ON BEHALF OF THE BOARD OF COUNTY COMMISSIONERS. CHAIRMAN NANCE: Yes. Mr. Ochs, I believe we're beginning on our 11:30 time-certain, which is a little late, but that's Item 12A; is that not correct, sir? MR. OCHS: Yes, sir. That is Item 12A, and it's a recommendation pursuant to Resolution 95-632 that the Board provide Packet Page -1057- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 3) legal defense and outside counsel for myself and Ms. Markiewicz, your procurement services director, who have both been sued individually by the Clerk of Courts over matters relating to your purchasing ordinance. CHAIRMAN NANCE: Commissioner Henning, I believe your light -- did you ring in, sir? COMMISSIONER HENNING: Yeah. I want to talk about this issue. The specifics in the case was a contract for education -- safety education for our employees. I was sent the invoice. Quite frankly, I wouldn't pay that invoice the way it was written. I think we can do a much better job -- and this is probably maybe a sidenote -- complying to the contract, my opinion. Now, going back in history, I think it was in 2013 that we were changing our purchasing policy to try to become lawful in some opinion. We did pass an ordinance but keeping with the same practice. Still a bone of contention, we directed the county attorney to work with the Clerk of Court to come up with a question to go to the State Attorney General to get an opinion about our practice. Is that right, Jeff? MR. KLATZKOW: Yes, sir. COMMISSIONER HENNING: Okay. But what I see is we had the County Manager's staff write an opinion to go to the AGO, and then we had a version from the Clerk of the Court. So I don't understand, Jeff, how staff got involved in this issue that we directed you to work with the Clerk of Court to come up with a question. MR. KLATZKOW: Staff did not believe that the question as posed by the Clerk would give them sufficient clarity into what they were supposed to do. COMMISSIONER HENNING: Okay. But that's -- again, it's contrary to what the Board directed. Did you feel comfortable with the Packet Page -1058- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 4) question the Clerk provided? MR. KLATZKOW: No. COMMISSIONER HENNING: All right. And I think somewhere -- going to court is not going to settle anything. Ultimately, it will; however, we've seen in the past where it's been very costly and feelings got hurt, and I think that we can do it differently. I think the question that should be proposed is our existing practice, something in the order of -- and, again, instead of going to court is let's move on with our original idea of getting an opinion. May the Board of Commissioners authorize staff to approve contracts $50 million or under? Does that comply with Florida law? What's wrong with that question? MR. KLATZKOW: You have an existing policy. I have no issue taking that particular policy and asking the AG, does this conform with Florida law. That's the policy that's under question. COMMISSIONER HENNING: Well -- MR. KLATZKOW: That would give clarity, okay, because it's -- everything else just ducks the issue. You have a board-approved policy. If the AG would say that that board-approved policy does not comport with Florida law, you know that. COMMISSIONER HENNING: I think that the policy can be attached, but it's something like 32 pages or something like that. MR. KLATZKOW: No. The only issue is about less than a page. The only issue we're talking about are purchases between 3,000 and $5,000 (sic). MR. OCHS: Fifty thousand. MR. KLATZKOW: Three and fifty thousand dollars. That provision is in the executive summary. I cut and pasted it. COMMISSIONER HENNING: Right. And I think that's what the question should be. I don't know if we can get a consensus for sending the question up to the State Attorney General and putting a Packet Page -1059- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 5) stay on this conflict within the court system. MR. KLATZKOW: No. I've spoken with Mr. Pires just before this started, and I believe that he might be amenable to that, but I'll let Tony speak for himself. COMMISSIONER HENNING: Okay. MR. OCHS: Mr. Chairman? COMMISSIONER HENNING: Otherwise, I can't approve going to court. Well, I should say that I hope that the Clerk would seek other remedies instead of going to court. MR. OCHS: Mr. Chairman? CHAIRMAN NANCE: Yes, sir. MR. OCHS: Again, just for the record, the Board hasn't been sued, for whatever reason. It's myself and Ms. Markiewicz individually. And while I appreciate Attorney General Opinions and other opinions, we have, frankly, debated this issue for many, many years, and it's the Clerk now that has sued to take this to a court of law. In my opinion, it's about time that we determined who sets the policy for this county government; is it the commission, or is it the clerk? And I think only a court of law, at the end of the day, can resolve that. CHAIRMAN NANCE: One point -- I'd like to make just a few comments. One of the things that we need is that we need to come to a working relationship with the Clerk that gives certainty and stability to our process. And what concerns me is that I don't see a pathway other than going -- than getting a judicial determination that's going to give us finality on this issue because, from time to time, on a matter that doesn't seem like it's being administered as it should, this topic comes up. And the way that it comes up is there's an assertion by the Clerk Packet Page -1060- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 6) that the County Manager or his agents are not working in a manner that's authorized by law, all the way down to a purchase order level, and that it is not possible for the Board of County Commissioners to delegate any of its governmental power, whatever that means, to the county administrator or restating the Florida Statute which says that the legislature intends only to allow the County Manager and their staff to do things that are administrative or ministerial. And at no point does it define a threshold that we use or that other counties use below $50,000 or below 100,000 or 20- or what other counties do. I've never seen anywhere defined -- that defines that as a de minimis amount of money that makes it administrative or ministerial and allows us to go forward with operations. Now, there's also individual circumstances that come up on a case-by-case basis, but we never know when those cases are going to come up. And what they do is they come up when other issues bring them to the forefront, and then it's discussed in terms of this greater theory that the county manager is simply not able to do what he's done and, therefore, we can't pay our vendors. I'm very, very concerned operationally about the effect that it has on the county's ability to get advantageous pricing from vendors, because the vendors also seem to get caught in this discussion between the County Manager and the Clerk, and sometimes maybe that's appropriate and sometimes not. It doesn't really matter because this is a -- this is a greater issue that somehow we have to come to some agreement or determination that people are going to be able to act in a way that can be codified by our purchasing policy and is acceptable. We just have bumped down the road from issue to issue. And, you know, it goes along for months and there's no problem. The process continues. It's been used on and off, I guess, way, way before my service on the board here. And then all of a sudden it's a problem Packet Page -1061- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 7) at this very fundamental level, and we always go back to the same issues. So if we can craft a pathway to a determination where everybody agrees in writing what's acceptable, then I have no problem with it. But I think it's so very harmful to everyone in government service. It's created a lack of faith in our citizenry. It's created a reluctance on the face of -- on the part of vendors to do business with the county, and it's caused us all to look exceedingly dysfunctional. And it keeps coming back to this same issue. So I would love, Commissioner Henning, to find a way to resolve this with some permanence. I just hope that somebody will suggest a pathway. Because until somebody comes up with something, I don't see any pathway other than a judicial determination on the intent of the legislature and the language that we keep coming back to and bickering over time after time after time. I do not know who's next. Commissioner Taylor? COMMISSIONER FIALA: I think it was Henning. COMMISSIONER TAYLOR: Henning. CHAIRMAN NANCE: Commissioner Henning, sir. COMMISSIONER HENNING: Yeah. If the Clerk would agree that we both go for an Attorney General's Opinion on -- you know, if there is any threshold of spending authority to staff under the Florida Statutes. Because, quite frankly, you know, I'm a black-and-white person. Most of the time when it comes to the people's money, what I see is the county staff can negotiate contracts subject to the Board's approval. That's what I read. It's very, very, very simple. So I also understand the dynamics of the things that need to be done on the day-to-day business within the county government. So, again, if the Clerk can agree to the answer of the question, then once you do that, it's going to be a lot cheaper. CHAIRMAN NANCE: Commissioner Taylor? Packet Page -1062- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 8) COMMISSIONER TAYLOR: I just wanted to hear from the Clerk. I guess it's Mr. Pires representing what's being offered because, I mean, I'm hearing things, but I don't know what's being offered. And I'm of like mind, if -- and I wasn't on the commission. Commissioner Fiala and Commissioner Henning were when the last go-round in court with the Clerk was. But if you at that time had said that it would end up $2 million and being appealed to the Florida Supreme Court, would you have believed it? COMMISSIONER FIALA: (Shakes head.) COMMISSIONER TAYLOR: Yeah. These things have a way of getting out of hand. And so I'm -- you know, when it's the Board's wish to do it, I'd like to hear from Mr. Pires. CHAIRMAN NANCE: Do you want to -- COMMISSIONER FIALA: I can say now, or I could wait till he's done. CHAIRMAN NANCE: Why don't you say what's on your mind, Commissioner Fiala, and then we'll go to Mr. -- the public speakers, Mr. Pires. COMMISSIONER FIALA: I feel that we as -- COMMISSIONER HILLER: Can you speak into the mike. COMMISSIONER FIALA: Pardon me. I'm sorry. Oh, thank you. We as county commissioners, our duty is to set policy, and we're never told to ask anybody what the policy should be. We work together to set policy. And I didn't realize that another office could come in and change that policy. I thought that we set the policy, so that causes confusion for me. And I don't quite agree with that, by the way. Not only that, but every time there's a complaint coming, it's a lawsuit, and the taxpayers are ending up paying for the lawsuits. That's a lot of waste of money. Why can't we just talk this thing Packet Page -1063- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 9) through or get an opinion from the Attorney General rather than lawsuits all the time? It looks -- that's a very poor way of running a government. Lastly, these lawsuits and these differences in opinions are causing people who do work for us to either fall by the wayside because they don't even want to work with the county anymore; they're not sure if they're going to get paid or not get paid. And when they do give us pricing, they're going to jack it up because they don't know whether they're going to get the pricing or not. So now all of these lawsuits and stoppage of payments -- right now there are other payments that haven't been made -- that drives up the price again for the taxpayers to pay. And I just think that that's a horrible disservice. I think we could go about this in a much better way. Thank you. CHAIRMAN NANCE: All right. Mr. Miller? MR. MILLER: Yeah. Mr. Chairman, your only registered speaker is Mr. Pires. I'm sorry. Tony Pires. MR. PIRES: Thank you. Either way. Thank you, or Anthony Pires. MR. MILLER: I'm sorry, sir. MR. PIRES: No. Formerly Anthony Pires known as Tony Pires, law firm of Woodward, Pires, and Lombardo representing the Clerk of Courts in this matter. I'm here to briefly address the board on this issue. And thank you for the opportunity. As to the Clerk's position and continued willingness to work with the Board and work with the County Attorney's Office as originally agreed to last year to draft and submit a request for an opinion to the Florida Attorney General's Office on this issue. Yes, we have a lawsuit that has been filed, and we have been Packet Page -1064- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 10) trying to resolve this issue for the last year another way since the joint request for an AGO working with the County Attorney's Office. We have drafted a request that asks the question as the Board directed last year. In the joint request submittal, the county has the opportunity to provide its memorandum of law. The Attorney General requests that you provide a memorandum of law supporting a position in the request for Attorney General's Opinion. And the county has the opportunity to provide its memorandum of law, and I think we've already shared ours with the County Attorney's Office. But I've not yet seen that from the county as to its legal opinion on this issue, similar to the prior joint CCNA BVO, best-value offer, an Attorney General's Office request that was made a few years ago where the Clerk and the county submitted a request. The county responded with their particular comments on the request, and the Attorney General's Office issued an opinion stating that the county's CCNA BVO, best-value offer, policy was inappropriate and not lawful and contrary to state statute. For all parties and for all the taxpayers of Collier County, we need to bring finality to this issue, and I've heard that discussion mentioned this morning -- afternoon, and the request for an AGO is a method previously agreed to. As long as we all continue to work in good faith with a good-faith effort to seek a resolution by way of the previously agreed-to approach of a joint request for an Attorney General's Opinion with appropriately framed questions based on facts, we are willing to extend the time to file the answers in this lawsuit by an additional 30 days. The answer is due -- or responses are due May 6th. We're willing to extend that for another 30 days. And provided that progress is being made on an agreed submittal, we will agree to additional extensions of 20 days each until and unless it becomes apparent that a joint request for an Attorney's General Packet Page -1065- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 11) opinion is not possible. Once everyone has agreed as to the request to be submitted to the Attorney General, the Clerk will dismiss the law suit. Again, we're here to continue to willingly work with the County Attorney's Office at the Board's direction to frame the questions -- with my 29 seconds left. Thank you. COMMISSIONER HENNING: Don't go anywhere. CHAIRMAN NANCE: Commissioner Fiala? COMMISSIONER HENNING: Don't go anywhere, Tony. COMMISSIONER FIALA: Can you tell me, if this is approved and so forth, are you going to pay all those vendors out there, or whomever -- I don't know if there's all or a lot or a few or whatever. Are those vendors going to be paid? Because it's not their fault all of this is going on. Oh, there's a vendor. MR. PIRES: Well, there are a number of vendors with a number of issues. And, again, until the Clerk is of the opinion -- COMMISSIONER FIALA: But they're issues -- MR. PIRES: -- that it's a lawful expenditure, the Clerk cannot pay those expenditures. COMMISSIONER FIALA: But they accepted the agreements to work for the county with understanding that if they would do the job and do it well, they would get paid for the amount that was negotiated and approved. They were never told that, well, maybe the Clerk won't agree with our policy, so they're not going to pay them. And that's another thing that's extremely disappointing to me. MR. SUMMERS: We're going out of business because of this. We've already had to let go half of our staff. COMMISSIONER FIALA: He's going out of business because of this. COMMISSIONER HILLER: Have you signed up to speak, sir? MR. MILLER: He signed up under public comment, and I was Packet Page -1066- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 12) just going to suggest that it might be better ceded to speak here. COMMISSIONER HILLER: No. You need to sign up under this item, if you didn't understand that. CHAIRMAN NANCE: Who's next, Commissioner Henning or Commissioner Hiller? COMMISSIONER HILLER: Let Commissioner Henning go. CHAIRMAN NANCE: Commissioner Henning, go ahead, sir. COMMISSIONER HENNING: Anthony, I don't know if I really agree with the question provided to the County Attorney by the Clerk's Office. I think it's -- I think it could be worded different and get to the same question, such as I stated earlier. Give you an example, may the Board of Commissioners of Collier County, Florida, delegate its discretionary spending authority. It's leading to me that we're giving our duties and powers away to have staff do our job. And what the real question is, can the Board of Commissioners authorize staff to approve contracts $50,000 or below. I mean, it's a simple question. And I can criticize the other document that was written, but I'm not going to. I just think that we need to try to nail this down today of what the question's going to be and submit it. MR. PIRES: Commissioner Henning, with regards to any revision to the question to be asked, it's something I would need to run by my client, the Clerk, before we can say that it would be incorporated in the request. And the question that you read was specifically at the direction of the Board a year ago, whether or not the Board has the ability to delegate discretionary spending authority and whether the Clerk has the ability to pay for an expenditure that the Board has not voted on as to serving a valid public purpose, and that's why that question was phrased. But I would gladly bring that and work with the County Attorney's Office to see if the Clerk is amenable to incorporating that Packet Page -1067- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 13) question into the request. COMMISSIONER HENNING: Jeff, what do you think about the question? Are you seeing it the same way as I am? MR. KLATZKOW: My view of this is that you have a definitive policy in place, and I would just like to submit that policy. And the Clerk's position is that policy is in derogation of a statutory requirement that the County Manager bring -- negotiated contracts and bring it to the Board, and that comes out of the county administrator statute. COMMISSIONER HENNING: Yeah, I got it right in front of me. MR. KLATZKOW: And I would just basically say, is this policy in conflict with this statute, or may the Board authorize the County Manager to proceed in this way. COMMISSIONER HENNING: What do you think of that, Anthony? MR. PIRES: Again, I don't think it's -- today, once again, the approach from the Clerk's Office is that we are willing to work with the County Attorney's Office over the next 30 days to see if we can craft the request for the Attorney General's Opinion that both parties are comfortable submitting, and I can't commit to the language being revised up here at the podium this afternoon. I can quickly take that back to the Clerk and try to get back as quickly as I can with the County Attorney's Office. MR. OCHS: Sir, you know, the clock is running on this requirement to submit an answer to the complaint, so -- COMMISSIONER HENNING: Well -- MR. OCHS: Again, this is Ms. Markiewicz and I that have been sued, not the Board. So we have quite a bit here at stake, and hopefully we can have our views considered. COMMISSIONER HENNING: And I think we're going to put a Packet Page -1068- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 14) stay on that. MR. PIRES: For 30 days. We'd extend the time frame for the responses to be filed for 30 days. Right now the 20 days -- COMMISSIONER HENNING: Additional? MR. PIRES: Additional. Right now it's May 6th; it would be 30 days from May 6th. And then, provided we're continuing to work forward in good faith, it would be additional 20-day extensions until it got to the point in time where it became apparent that a joint request was not possible. COMMISSIONER TAYLOR: Or a joint request goes forward, in which case -- MR. PIRES: Either one. We would dismiss the lawsuit. COMMISSIONER TAYLOR: You would dismiss it? MR. PIRES: Yes. COMMISSIONER TAYLOR: Okay. I'm sorry. I didn't mean to interrupt there. COMMISSIONER HENNING: No, that's great. I'm done. CHAIRMAN NANCE: Commissioner Hiller? COMMISSIONER HILLER: This issue of presenting a question to the Attorney General has been going on for how long now, a year, or more than a year? MR. OCHS: Yes. COMMISSIONER HILLER: And if by this point in time there isn't an agreement as to what the question should be -- and it should not be a leading question, and as it's framed, it is a leading question -- I don't see any reason why, since the Clerk has sued the County Manager and the county's purchasing agent, that we should do anything but allow them to have representation and proceed with this litigation. If in the interim the Clerk would like to work with staff, be it the County Attorney or the County Manager, and if there is some Packet Page -1069- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 15) resolution to this matter during the pendency of the litigation, the litigation will be dropped by the Clerk. But for us to believe that because of the threat of litigation that somehow the county will capitulate on the framing of the question in a manner which is leading and will somehow result in whatever the Clerk wants to ratify, whatever his position is, is completely unacceptable. And to sit here and say, okay, well, you know, we filed a lawsuit against you, which I find reprehensible in the first place, and we'll wait another 30 days if you come up with a question that we find acceptable, you know, to try to put pressure on the Board through those kind of legal tactics is just downright offensive. So I listened very carefully to what this board has said. I listened very carefully to Commissioner Fiala's comments, which I think are very, very important, and that is -- the question is who decides policy. And to Commissioner Nance's point that this is interrupting the county's ability to do business in a very serious fashion. I mean, I've got a vendor standing right behind you who just said that he is going out of business because of what is going on with respect to this conflict. We have a duty to the citizens of this community to deliver the services, and we cannot allow this matter to interpret our duty to our community. So I say that, you know, we fund the representation for our staff because they are the ones being sued, not this board, and we have a resolution which provides for that. And hopefully in the meantime, Tony, I hope you can, you know, work with your client to, you know, figure out some alternative solution, and I hope that you, you know, see the wisdom of dropping this suit. But in the meantime, I think the County Manager and the county's purchasing agent ought to defend, and we need judicial Packet Page -1070- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 16) finality. An Attorney General Opinion is nonbinding, and it's certainly not final. And if it comes back with an answer that you don't like and your client doesn't like, then you're going to be back in front of this board with some sort of litigation. So we need to stop kicking the can down the road. We need finality. And I respect your comments, Commissioners, that at this time I think we need to move forward and approve funding. CHAIRMAN NANCE: Well, I'll make a comment, then I'm going to go to Commissioner Taylor. I certainly believe that it's the Board's responsibility to provide defense for our staff. The staff has been acting in good faith based on policies adopted by the Board. It would be irresponsible, in my view of the Board, to not provide them with a legal defense when they have been sued for acting based on guidance given by their bosses. You know, perhaps the -- perhaps the Court would decide that they were not at fault and the Board of County Commissioners was rightfully the one who had erred or been outside Florida Statute, but it's certainly not our paid employees that are acting in good faith on the policies that we've adopted. So I would certainly think that we have to, at the minimum, allow them to have a rational defense. How can we go forward without that? That makes no sense. Commissioner Taylor? COMMISSIONER TAYLOR: I would agree, you know, if it gets to that point, and that will be a decision we're going to make today. CHAIRMAN NANCE: Ma'am, it's to that point. They have been sued. COMMISSIONER TAYLOR: We're allowed a 30-day breather Packet Page -1071- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 17) to take a deep breath and to look at this and maybe craft an AGO opinion that might satisfy both parties. I'm not sure why we wouldn't do that. And now there's a time frame. My understanding of reading the past minutes, there was never a time frame. There was an AGO opinion requested, I think it was last year, but there wasn't, okay, you have to do that within a certain time frame. Now we've got a time frame. And I being the -- it's very clear that we, of course, would support the County Manager and Ms. Markiewicz in legal defense of -- to fund it. Of course we would. I mean, I would agree to that, but we have nothing, nothing to lose by taking a breath and allowing it one more time. And, frankly, I'm rather impressed by our County Manager's solution of just submitting the -- our purchasing policy, as this board has approved. MR. OCHS: You mean your County Attorney, ma'am? COMMISSIONER TAYLOR: I'm sorry. Did I say County Manager? County Attorney, yes, to submit that policy specifically targeting the $50,000 and under amount as it's written to see what the AGO would say. Now, of course, there has to be whatever -- whatever comes back from that is going to give us a lot more clarity than we have now. We have nothing, nothing to lose. MR. OCHS: Mr. Chairman? COMMISSIONER TAYLOR: And taxpayers' monies to save. CHAIRMAN NANCE: Mr. Ochs? MR. OCHS: Again, just to the question of an AGO, as Commissioner Hiller, I believe, has correctly pointed out, if the Board's interest is similar to mine in terms of wanting to get this matter ultimately resolved and some finality to it, an Attorney General Opinion, from my layman's understanding, is nonbinding and is Packet Page -1072- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 18) ultimately subject to interpretation by the court system or the legislature or both. If there's a new clerk some day or a different board, their opinion of the Attorney General's Opinion could be very differently applied. I just don't know how we settle this, and I'm, frankly, as tired as most of you are, I'm sure, after 15 or 20 years of trying to slug through this and, you know, deaths by a million cuts. Let's just get it resolved. CHAIRMAN NANCE: Commissioner Fiala, then Commissioner Henning. MR. OCHS: There's dozen of other counties, sir, in the state that have this identical or similar policy, all non-chartered counties, all working under the same state statutes that Ms. Markiewicz and I are accused of violating all of those clerks and commissions have found a way, miraculously, to figure out how to adopt and execute that policy together without any lawsuits that I'm aware of. CHAIRMAN NANCE: And all of them seem to be functioning under the theory that a certain threshold or de minimus amount qualifies as an administrative or ministerial action of its county manager. MR. OCHS: I can tell you that hundreds of thousands if not millions of dollars of transactions in this county have taken place over the last 20 years in this same manner. CHAIRMAN NANCE: And what is the difference between any one of those transactions and the one that seems to have triggered this lawsuit? MR. OCHS: I am not sure about that, sir. CHAIRMAN NANCE: I'm not sure about it either. Commissioner Fiala, then Commissioner Henning. COMMISSIONER FIALA: Thank you. One of the reasons that we set this policy up, of course, it's because, as the County Manager said, all of the counties in -- most Packet Page -1073- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 19) every one of the counties has a policy just like that. And the reason this policy is in place is there are times when we won't be here, and we can't make any decisions on our own. We need the County Manager to step in or his representative to step in for us. Like, for instance, when we're gone two months in the summer, now, we might be hanging around town, we might not be, but nobody's here. And if you need to buy supplies, you've got to depend on the County Manager to make those decisions and get that contract taken care of and pay the vendor. Then Commissioner Taylor said we have nothing to lose right now, and you're right, except that the people that are not being paid have plenty to lose, and I just wanted to add that to what you were saying. I agree with everything you said, by the way. But we've got some people here, no matter how long it takes us, they're not getting paid. And it's -- and I think that should be required. Even though we're deliberating, they should -- those people should be paid. That just bothers me so much. And let's see. We've been -- here's the other thought. We've been under this -- as long as I've been here, 15 years, we've always operated under this policy, and the Clerk has always paid the vendors under this policy, and now all of a sudden after 15 years he's not paying them. Something's wrong with that picture. Thank you. MR. MILLER: Mr. Chairman, if I might, I did have one additional speaker, the gentleman that's standing. He had submitted this under public comment, but as I read this, it is regards to payment on an invoice. Would you like to hear that on this item, sir? COMMISSIONER HENNING: Yes. CHAIRMAN NANCE: I don't think we're going to hear that issue now because I don't think that's a comment on the issue that we're Packet Page -1074- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 20) deliberating on at this moment. MR. MILLER: Yes, sir. I just wanted to -- CHAIRMAN NANCE: Sir, if you don't mind, I would love to hear your comment, but I don't think it's appropriate to hear it -- I don't want to diverge off the issue. Commissioner Hiller, then Commissioner -- all right. Commissioner Hiller, then Commissioner Henning. COMMISSIONER HILLER: Yeah. I think Commissioner Fiala made a very important point, and that is this exact type of expenditure has been paid for again and again by the Clerk. And it raises a thought in my mind that gives me pause for concern. If the Clerk is asserting that to pay this particular expenditure is illegal, then that would suggest that all the previous expenditures paid by him were, in fact, illegal warrants, and he's personally liable. So I guess my question is, where is his responsibility for all those previous payments that he made where he now alleges that they're illegal and improper? He has a duty. He has an obligation. He has personal liability if an illegal warrant is issued by him. And I guess -- I mean, what would he have to do, pay the county back for all those illegal warrants if it was deemed that this was illegal? It's a question that concerns me. To that end, I agree with you, Commissioner Fiala. I think it's very concerning that exactly this type -- I should say this process which has been used for all these years is now deemed illegal, and the statute hasn't changed. So, I mean, I think -- I'd like to -- I think we need to make a motion. I think we need to move forward on this. I hope in the meantime the Clerk reconsiders his litigious position, but I think we have to -- we have to defend based on what you-all have said. So I'm going to make a motion to recommend that we authorize the county -- and I'm not quite sure -- you have to help me phrase this, Packet Page -1075- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 21) County Attorney. What's the appropriate phraseology for this motion? MR. KLATZKOW: Well, I guess my question is, part of the request is that you direct me to intervene in this action on behalf of the county so that it would -- the county would be involved in the litigation -- COMMISSIONER HILLER: No, that -- MR. KLATZKOW: -- as well as to authorize Mr. Ochs to procure counsel to defend him. COMMISSIONER HILLER: Well, I think what we could start with is to have the -- to basically allow the County Manager and the county purchasing agent to select representation and to fund that representation in defense of the action, which is a claim against them individually in their official capacities doing county business, and the resolution allows for us to provide funding for their representation. And I think that's what the motion ought to be at this point, and let them move forward. CHAIRMAN NANCE: I will second that for discussion. Commissioner Henning? COMMISSIONER HENNING: Well, I was going to make a motion if this one fails. I'm still prepared to make a motion that I think is more favorable to the taxpayers and resolves this issue quicker. CHAIRMAN NANCE: What would that consist of, sir? COMMISSIONER HENNING: Well, that would consist of directing the County Attorney to work with the Clerk's representation to request a stay on the litigation, prepare a question to the State's Attorney General, and if that cannot be accomplished, then the Board authorizes what the recommendation is under 12A, and that would be to procure representation for the -- is it the director? Are you a director or interim director? MS. MARKIEWICZ: Director. MR. OCHS: Director. Packet Page -1076- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 22) COMMISSIONER HENNING: -- for the director of purchasing and the County Manager. MR. PIRES: Mr. Chairman? CHAIRMAN NANCE: I don't think those are mutually exclusive motions. Mr. Pires? MR. PIRES: If I may just briefly address one item. The resolution, I'll call it the strawman or red herring of nonpayment of vendors because the contract hasn't come before the Board, can be resolved by those contracts coming before the Board for ratification utilizing the same process that should have been used at the additional (sic) adoption time that is always available, so that the Clerk can pay those contractors and vendors. CHAIRMAN NANCE: What about a $5 item, Mr. Pires? MR. PIRES: It's a hypothetical. If you have a $5 item to buy something from Staples and you have a general contract with Staples, they can buy items on the approved contract with Staples. CHAIRMAN NANCE: What if we do not? MR. PIRES: You have purchase cards, I believe, that are used quite frequently for those type of purchases. MS. KINZEL: And, Commissioner, they have petty cash funds that have always been authorized and allowed. So I think we're really looking at the larger payment and larger contract amounts. And if the concern is for the vendors, if the contracts come before the Board and are approved by the Board, they could be processed. CHAIRMAN NANCE: Commissioner Taylor? MR. OCHS: That's the whole subject of the suit. CHAIRMAN NANCE: The whole subject of the suit is our current policy that has a threshold amount for operation. Commissioner Taylor? COMMISSIONER TAYLOR: We digressed. I was just -- I'm Packet Page -1077- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 23) just a little confused, because as the new person on the board, things would be brought to me and I'd ask questions, and I need to understand from the Clerk's perspective. It's my understanding that on many cases -- I'm not saying it's 100 percent, because I don't have that kind of memory. But on many cases I understood from the Clerk that the nonpayment -- and, believe me, I've heard about the nonpayment before I was elected. So, you know, doing business with the county is challenging. That has a lot -- that has to do not with this policy, but has to do with perhaps not following the contract that was signed and things like that, not -- my understanding, that it has so little to do with that $50,000-and-under policy. It has more to do with the way the contract is developed, what the contract says, does it match what the contractor's done; if it doesn't, then we can't do this, that kind of thing. But I think -- I think what I'd like to suggest with this, maybe to facilitate this -- and I think Commissioner Fiala had a very important comment and good idea that I'd like to further that -- is that if there's anything in that 30-day -- I mean, we're talking 30 days, for Pete's say -- 30-day time period. If we can get -- if we can get a question to the AGO, if there's anything that comes up in that time period that has anything to do with this policy, that it's -- that the Clerk follows the policy and it's paid, because that's what our policy says. You pay it, 50,000 and under, the County Manager can execute it, and it can be paid, and then we go forward. I mean, again, I don't -- it's my understanding -- and I guess we'd have to hear from the Clerk's Office, but it's my understanding the bulk of what's not being paid is because of contracts that do not conform with the work that's been done. CHAIRMAN NANCE: Commissioner, this lawsuit says that this is not being paid because our staff does not have the right to do it. COMMISSIONER TAYLOR: Right. Packet Page -1078- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 24) CHAIRMAN NANCE: It doesn't have anything to do with the particulars of this particular issue. It was just selected as an issue. It has do with any which -- it has to do with the challenge to the policy of the Board of County Commissioners, which it states right now that between 3,000 and $50,000, these people have the authority to make certain decisions. Now, whether they make decisions within that that's appropriate for the Board of County Commissioners to have a discussion with its County Manager. And if the County Manager does not perform to our policy, he can be dismissed by three votes at anytime. We are the bosses, the five of us, collectively, over the County Manager. COMMISSIONER TAYLOR: Right. CHAIRMAN NANCE: This discussion always lapses back. It doesn't have to do with the individual details of any contract. It has to do with the fundamental statement that's right in this lawsuit. It says here, the intent of the legislature to grant the county administrator only those powers and duties which are administrative and ministerial. All of a sudden, we've done something, and he has no authority to do that because the only thing he can do is administrative or ministerial things which -- whatever that means. I don't even know what that means. COMMISSIONER TAYLOR: But it's my understanding -- what I'm saying is it's my understanding of the vendors who are not being paid, the reasons they're not being paid are not this reason. It's other reasons. CHAIRMAN NANCE: But that's not what we're discussing here. COMMISSIONER TAYLOR: Right. CHAIRMAN NANCE: We're discussing the fact that, in my opinion, we have two employees of the Board of County Commissioners that is suggested that they be held hostage for the next 30 days until we rush through some resolution without defense. Packet Page -1079- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 25) They've been sued individually. The county -- Board of County Commissioners is not being sued. These employees of Collier County are being sued. And I, frankly, don't care for that. COMMISSIONER HILLER: I'm with you. COMMISSIONER FIALA: Me, too. CHAIRMAN NANCE: I don't see how in the world the Board of County Commission cannot supply these people with defense when they have been personally sued by the Clerk. COMMISSIONER TAYLOR: I didn't -- I never said they shouldn't. COMMISSIONER HILLER: I'd like to ask that the -- I'd like to call the question, have you call the question. CHAIRMAN NANCE: Commissioner Fiala, and then we'll take a -- we've got a couple of pending votes here. COMMISSIONER FIALA: Well, she could call the question, too, because I'm ready to discuss that. I was just going to ask, because it was said briefly that we hadn't approved these contracts so that's why they weren't paying them. Can we just make a motion here and say we approve those contracts, and then they pay them? COMMISSIONER HILLER: We don't want to go there. COMMISSIONER FIALA: No? Can't do that? COMMISSIONER HILLER: I would just stick to this. We'll deal with that. COMMISSIONER FIALA: Okay. That's all I want. CHAIRMAN NANCE: Okay. We have a motion on the floor. It's my understanding, Commissioner, and I was the second, that authorizes the Office of the County Attorney to work with Mr. Ochs and Ms. Markiewicz to retain outside counsel. Is that your motion, and a second; is that correct? COMMISSIONER HILLER: Is that correct, yeah. CHAIRMAN NANCE: I'm asking you if that's your motion. Packet Page -1080- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 26) COMMISSIONER HILLER: If that's all right. CHAIRMAN NANCE: Okay. I was the second. Any further discussion? (No response.) CHAIRMAN NANCE: All those in favor, signify by saying aye. COMMISSIONER FIALA: Aye. CHAIRMAN NANCE: Aye. COMMISSIONER HILLER: Aye. CHAIRMAN NANCE: All those opposed? COMMISSIONER TAYLOR: (No verbal response.) COMMISSIONER HENNING: Aye. CHAIRMAN NANCE: Okay. That passes 3-2. Commissioner Henning, I think it's absolutely perfectly possible for us to stand down in this issue if we can get an Attorney General's Opinion. And I would think it completely appropriate that Mr. Ochs and Ms. Markiewicz would stand down also if we can do that. Now, if we can do that, I think everybody can agree we can stand down with this lawsuit. But I don't see, you know, how we can not go forward. MR. KLATZKOW: Commissioner, it is my understanding that an Attorney General will not give an opinion if there's an existing dispute. COMMISSIONER HILLER: And there is an existing dispute. COMMISSIONER FIALA: Say that one more time. MR. KLATZKOW: It is my understanding that the Attorney General will not issue an opinion if there's an existing lawsuit. CHAIRMAN NANCE: So then we have to agree to stand down in our lawsuit for us -- MR. KLATZKOW: Well, you're not standing down. COMMISSIONER FIALA: It's he that's suing us. COMMISSIONER TAYLOR: He's standing down. CHAIRMAN NANCE: The Clerk is suing us. Packet Page -1081- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 27) MR. KLATZKOW: That's correct. COMMISSIONER HILLER: And they're not withdrawing that suit. MR. OCHS: No. COMMISSIONER HILLER: They're keeping that suit. CHAIRMAN NANCE: This sortodamically (phonetic) is over everybody's head. COMMISSIONER HILLER: Absolutely. I think -- look, the discussion is over. We've voted. Let's move to the next item, please. MR. OCHS: Mr. Chairman, if I may, one related item. The lawsuit and the service attendant to that requires a response within 20 days of the date that it's delivered. I won't be able to get back to you with a recommendation on outside counsel nor will Ms. Markiewicz until the next meeting, which is beyond the date that we have to file a response to this complaint. What I'm requesting of the Board is that they authorize the County Attorney to ask -- or to make a motion to the Court to get an extension on the filing of the response so that Ms. Markiewicz and I have an opportunity to secure counsel and respond to the complaint. COMMISSIONER HILLER: But you don't need to bring back your choice of counsel to us. You can go out and hire an attorney today. MR. OCHS: Okay. COMMISSIONER HILLER: How much time do you -- how much time has it been since you were served? How much time do you have to respond? MR. OCHS: Well, the response is due on, I believe, May the 6th, Mr. Pires. MR. PIRES: That's correct. COMMISSIONER HILLER: What's the date? CHAIRMAN NANCE: I believe -- Packet Page -1082- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 28) COMMISSIONER HILLER: Your attorney can -- CHAIRMAN NANCE: -- your counsel can manage your case, sir. I don't see -- COMMISSIONER HILLER: Yeah, your attorney can file a request -- CHAIRMAN NANCE: Can manage your case as needed, unless you feel like we somehow need to validate that decision. MR. OCHS: No. Historically, it's been a two-step process, but it doesn't have to be. We can just -- COMMISSIONER HILLER: It's not. CHAIRMAN NANCE: Mr. Klatzkow, do you have an opinion or can you provide us -- COMMISSIONER HILLER: The law doesn't -- the resolution doesn't require that. MR. KLATZKOW: I think you can authorize Mr. Ochs and Ms. Markiewicz to get outside counsel and be done with it. CHAIRMAN NANCE: We're done. (The requested excerpt concluded.) ***** Packet Page -1083- 5/12/2015 16.F.2. April 28, 2015 (Excerpt Item #12A – Page 29) STATE OF FLORIDA) COUNTY OF COLLIER) I, Terri L. Lewis, Notary Public, do hereby certify that the foregoing proceedings were taken before me at the date and place as stated in the caption hereto on Page 1 hereof; that the foregoing computer-assisted transcription is a true record of my Stenograph notes taken at said proceedings. Dated this 4th day of May 2015. ______________________________ TERRI L. LEWIS, Notary Public, State of Florida; My Commission No. FF 010990 Expires: August 23, 2017 Packet Page -1084- 5/12/2015 16.F.2.