Agenda 09/10/2013 Item #16K2 9/10/2013 16.K.2.
EXECUTIVE SUMMARY
Recommendation pursuant to Collier County Resolution No. 95-632, that the Board of
County Commissioners authorizes the Office of the County Attorney to represent Ian
Mitchell, former Executive Manager to the Board of County Commissioners, who is being
sued by former employee Evelyn Prieto, in the case styled Evelyn Prieto v. Collier County, a
Political Subdivision of the State of Florida, Collier County Board of County Commissioners,
and Ian Mitchell, individually, Case No. 2:13-cv-489-FtM-38UAM, United States District
Court, Middle District of Florida, Fort Myers Division.
OBJECTIVE: That the Board of County Commissioners (Board) directs the County Attorney
to defend Mr. Mitchell in a suit brought by former aide to the Board of County Commissioners
Evelyn Prieto.
CONSIDERATIONS: Collier County Resolution No. 95-632 sets forth the Board's policy
towards providing a legal defense to County Staff in litigation arising out of the performance of
their official duties and while serving a valid public service. The Resolution mirrors Florida Law
(both Fla. Stat. Sec. 111.07 and case law). A copy of Resolution No. 95-632 and the above-
referenced Complaint are attached. Mr. Mitchell, as an employee of the Board of County
Commissioners, falls within the definition of those covered by the Resolution. His termination
of Ms. Prieto fell within his official duties. As a matter of law, the fact that he is no longer an
employee does not disqualify him from this benefit. Mr. Mitchell contacted me on July 30,
2013, when he was served with this Complaint.
Briefly stated, the Complaint alleges that Mr. Mitchell terminated Ms. Prieto's employment in
retaliation for her support of certain candidates for the County Commission during the 2012
Primary and General Elections. According to the Complaint, this violated Ms. Prieto's rights
under the First Amendment of the U.S. Constitution. Additionally, the Complaint asserts that
Mr. Mitchell's actions constituted tortuous interference with Ms. Prieto's business relationship
with Collier County.
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. If the Board makes
such findings, the representation may be either by hiring outside counsel, or through the Office
of the County Attorney. Since this claim alleges a civil rights violation, the Board may elect not
to provide Mr. Mitchell with representation at this time, but to instead reimburse him for
reasonable attorney fees and costs should he prevail in the action.
During the Board's recess, I elected to honor Mr. Mitchell's request and represent him until the
Board could consider this matter. We obtained an extension of time until September 30, 2013,
for both the County and Mr. Mitchell to file an Answer in order to allow the Board to make its
determination.
FISCAL IMPACT: The hourly charges for most litigation attorneys who would be retained in
a case such as this would likely run in the neighborhood of$250.00 to $300.00 per hour. By
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directing the County Attorney to undertake such representation, costs will be minimized. This
matter will be brought back to the Board should a conflict of interest arise between the County
and the co-defendant Mr. Mitchell.
GROWTH MANAGEMENT IMPACT: None.
RECOMMENDATION: That the Board of County Commissioners directs the County
Attorney to defend Mr. Ian Mitchell in a suit brought by former employee Evelyn Prieto in the
case styled Evelyn Prieto v. Collier County, a Political Subdivision of the State of Florida,
Collier County Board of County Commissioners, and Ian Mitchell, individually, Case No. 2:13-
cv-489-FtM-38UAM, United States District Court, Middle District of Florida, Fort Myers
Division.
SUBMITTED BY: Jeffrey A. Klatzkow, County Attorney
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.K.16.K.2.
Item Summary: Recommendation pursuant to Collier County Resolution No. 95-632, that
the Board of County Commissioners authorizes the Office of the County Attorney to represent
Ian Mitchell,former Executive Manager to the Board of County Commissioners, who is being
sued by former employee Evelyn Prieto, in the case styled Evelyn Prieto v. Collier County, a
Political Subdivision of the State of Florida, Collier County Board of County Commissioners, and
Ian Mitchell, individually, Case No. 2:13-cv-489-FtM-38UAM, United States District Court,
Middle District of Florida, Fort Myers Division.
Meeting Date: 9/10/2013
Prepared By
Name: NeetVirginia
Title: Legal Assistant/Paralegal,County Attorney
8/1/2013 4:08:01 PM
Approved By
Name: KlatzkowJeff
Title: County Attorney
Date: 9/3/2013 1:17:01 PM
Name: KlatzkowJeff
Title: County Attorney
Date: 9/3/2013 2:22:50 PM
Name: IsacksonMark
Title: Director-Corp Financial and Mgmt Svs,CMO
Date: 9/3/2013 2:44:35 PM
Name: OchsLeo
Title: County Manager
Date: 9/3/2013 3:29:25 PM
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AO 440(Rev.06/12) Summons in a Civil Action
UNTIED STATES DISTRICT COURT
for the
Middle District of Florida
EVELYN PRIETO )
Plaintiff(s) )
v. } Civil Action No.
COLLIER COUNTY, a Political Subdivision of the )
State of Florida, COLLIER COUNTY BOARD OF ) -C. / D t -PM 1' +l I rr
COUNTY COMMISSIONERS,and IAN MITCHELL, )
individually )
Defendant(s) )
SUMMONS IN A CIVIL ACTION
To:(Defendant's name and address) Ian Mitchell
9060 Palmas Grande Blvd.#104
Bonita Springs, FL 34135
A lawsuit has been filed against you.
Within 21 days after service of this summons on you(not counting the day you received it)--or 60 days if you
are the United States or a United States agency,or an officer or employee of the United States described in Fed. R.Civ.
P. 12(a)(2)or(3)—you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney,
/�`!/_whose name and address are: Bradley P. Rothman, Esq.
\t `6 `fir Weldon&Rothman, PL
`7 7935 Airport-Pulling Rd. N., Ste.205
—111,c"1 � Naples, FL 34109
If you fail to respond,judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date: 13-13 Y t..l.
Signature of Clerk or Deputy Clerk
Asw
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•
AO 440(Rev.06/12) Summons in a Civil Action(Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed.R. Civ.P. 4(1))
This summons for(name of individual and title,if any)
was received by me on(date)
D I personally served the summons on the individual at(place)
on(date) ;or
D I left the summons at the individual's residence or usual place of abode with(name)
a person of suitable age and discretion who resides there,
on(date) ,and mailed a copy to the individual's last known address;or
D I served the summons on(name of individual) ,who is
designated by law to accept service of process on behalf of(name of organization)
on(date) ;or
D I returned the summons unexecuted because ;or
D Other(sped):
My fees are$ for travel and$ for services,for a total of$ 0.00 •
I declare under penalty of perjury that this information is true.
Date:
Server's signature
Printed name and title
•
Server's address
Additional information regarding attempted service,etc:
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RECF JVED
2013 JUL —3 !I.23
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Rtc COURT
FORT MYERS DIVISION In LMy TRICT OF FLO RID
ID r MYERS,FLORIDA I
EVELYN PRIETO,
Plaintiff,
vs. CASE NO.:
COLLIER COUNTY, a Political Subdivision of
the State of Florida, COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS, 2Q11..._e�_ ..gtyq-�j$ZCA�t�
and IAN MITCHELL,individually,
Defendants.
COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff, Evelyn Prieto ("Plaintiff'), by and through undersigned counsel, hereby mok
sues Defendants, Collier County, Florida ("Collier County"), the Collier County Board of
Commissioners ("Board of Commissioners"), and Ian Mitchell (Mitchell), and alleges as
follows:
1. This is an action brought pursuant to the Civil Rights Act of 1871, as
amended, 42 U.S.C. § 1983 ("Civil Rights Act") to redress the violation of Evelyn Prieto's
rights under the First Amendment of the U.S. Constitution.
2. This Court has jurisdiction arising under subject matter jurisdiction pursuant
to 28 U.S.C. § 1331, as this claim arises under 42 U.S.C. § 1983, the Civil Rights Act. This
Court also has supplemental jurisdiction over the below Florida common law claim pursuant
to 28 U.S.C. § 1367, as the state and federal claims form part of the same case or
controversy.
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3. Venue is proper in this Court pursuant to 28 U.S.C. § 1331(b),as the events or
omissions giving rise to the claims alleged herein occurred in the Middle District of Florida,
Fort Myers Division.
4. Plaintiff was and is a resident of the Middle District of Florida, Fort Myers
Division. At all times pertinent,Plaintiff worked for Collier County in the Middle District of
Florida, Fort Myers Division, serving as an Executive Aide to the Board of Commissioners.
At all times pertinent, Plaintiff was well qualified for her position.
5. Collier County is a political subdivision of the State of Florida organized
under the laws of the State of Florida and Ordinances of Collier County, Florida, and
maintains its principal place of business in Collier County, Florida.
6. Board of Commissioners is located and organized under the laws of the State
of Florida and Ordinances of Collier County, Florida, and maintains its principal place of
business in Collier County, Florida.
7. Mitchell was and remains a Florida resident and citizen residing in Collier
County, FL.
Count I—Retaliation
(Collier County and Board of Commissioners)
8. Plaintiff re-alleges and incorporates paragraphs 1 through 7.
9. At all times pertinent, Plaintiff worked as an Executive Aide to the Board of
Commissioners.
10. At all times pertinent, Mitchell acted under the color of state law in his official
capacity as Executive Manager for the Board of Commissioners and for Collier County.
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11. On or about October 27, 2008, Collier County/Board of Commissioners hired
Plaintiff as a Customer Service Representative for the Parks and Recreation Department. On
or about May 4, 2009, Plaintiff was promoted to the Executive Aide position for the Board of
Commissioners.
12. During her time as an Executive Aid, Mitchell served as Plaintiff's supervisor.
As an executive aid, Plaintiff initially performed her required duties for Collier County
Commissioner Jim Coletta ("Commissioner Coletta") before switching around November
2010 to perform her required duties for Collier County Commissioner Tom Henning
("Commissioner Henning"). While Mitchell was Plaintiff's supervisor, Plaintiff performed
her required job duties for certain Collier County Commissioners as indicated above.
13. On or about August 14, 2013, pursuant to Plaintiff's First Amendment rights
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to freedom of political expression, and on Plaintiffs own time and outside of her
employment, Plaintiff attended a political election night celebration,wherein Plaintiff wore a
political t-shirt prominently supporting Commissioner Henning, and proudly embraced and
posed for a photograph with her daughter wearing a t-shirt prominently supporting Tim
Nance ("Nance") for County Commissioner ("the Political Expression"). (At the time,
Nance had just won his seat on the Board of Commissioners defeating Commissioner
Coletta, the incumbent. It was the first time in two decades a sitting commissioner lost an
election. It was also widely believed that Nance's victory would shift the balance of power
within the County Commission, forming a new majority block which would include
Commissioner Henning, who represented an opposing viewpoint from Commissioner
Coletta.) The Political Expression was captured in a photograph and displayed on Facebook.
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14. On or about August 16, 2012, Mitchell (or someone acting on Mitchell's
behalf)downloaded the photograph of the Political Expression from Facebook and placed the
photograph in a file concerning Plaintiff kept by Mitchell. As a strong supporter of
Commissioner Coletta, Plaintiff upset Mitchell by politically supporting Nance and
Commissioner Henning on her own time. Mitchell downloaded and maintained the Political
Expression as grounds for employee discipline.
15. Following the Political Expression, Mitchell began ignoring Plaintiff at work
(intensifying a trend of hostile behavior against Plaintiff due to Plaintiff's perceived political
association with Commissioner Henning and/or Nance).
16. At a public hearing on September 26, 2012, Mitchell asked the Board of
Commissioners to terminate his employment. In light of the election results,Mitchell did not
want to continue working for the Board of Commissioners.
17. After Mitchell asked to be terminated, on or about October 10, 2012, Plaintiff
arrived at work at approximately 8:00 a.m. only to be intercepted by security. Plaintiff was
ushered into a conference that included Mitchell and a co-worker, Ken Mayo. Plaintiff was
then handed a letter of termination dated October 4, 2012, told she was being paid for that
day,and told that she would send in a list of her belongings and they would be sent to her at a
later date.
18. The letter of termination was signed by Mitchell and did not contain language
that anyone other than Mitchell was involved in Plaintiff's termination. Mitchell — on his
way out - terminated Plaintiff in retaliation for her personal political support for
Commissioner Henning and/or Nance. The termination did not follow proper procedure, was
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• lacking in proper documentation, and there was not appropriate documentation in Plaintiff's `""
file to support the termination.
19. At a public hearing on October 23, 2012, County Commissioner Georgia
Hiller admitted that there was no evidence in Plaintiff's Human Resources file to support her
termination and that Plaintiff's termination was lacking in proper documentation.
Commissioner Henning, who Plaintiff worked for directly, admitted that there was no reason
from his perspective for the termination and that to date he had not received additional
information regarding why Plaintiff was being terminated. Commissioner Coletta
acknowledged that the photograph's analysis was indicative of a "political problem"
surrounding Plaintiffs termination.
20. Plaintiff's support of political candidates in her private time constitutes
protected speech and expression under the First Amendment of the U.S. Constitution.
21. Based on the foregoing, Collier County's and the Board of Commissioners'
actions through Mitchell, including without limitation, the termination of Plaintiff, were
taken in retaliation for the Political Expression.
22. Plaintiff has been damaged by Collier County's, the Board of Commissioners'
and Mitchell's actions, including the loss of pay and benefits, loss of advancement
opportunity within Collier County, and the overall damage to her reputation that will affect
her employability for the foreseeable future.
23. Plaintiff has also experienced emotional distress, and lost enjoyment of life as
a result of this retaliation.
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24. Mitchell's actions were taken in reckless indifference to Plaintiff's federally
protected rights.
25. Plaintiff has engaged the undersigned counsel and agreed to pay him a fee.
26. All conditions precedent to the filing of this action have occurred or have been
waived.
WHEREFORE, Plaintiff, Evelyn Prieto, demands judgment for damages against
Defendants, Collier County and the Board of Collier County Commissioners, including back
pay, reinstatement or in the alternative front pay, compensatory damages, attorneys' fees and
costs, and for such further relief as the Court deems just and proper.
COUNT H—Tortious Interference
(Mitchell)
27. This is an action against Mitchell for tortious interference with a business
relationship. See Alexis v. Ventura, 66 So.3d 986 (Fla. 3d Dist. Ct.App. 2011).
28. Plaintiff re-alleges and incorporates paragraphs 2 through 7.
29. Plaintiff worked for Collier County and the Board of Commissioners as an
Executive Aide to the Board of Commissioners from approximately May 4, 2009 through
October 10, 2012. (Plaintiff began her employment with Collier County/Board of
Commissioners in October 2008 in a different capacity.)
30. Plaintiff and Collier County/Board of Commissioners had a business
relationship under which Plaintiff had legal rights.
31. As the Executive Manager for the Board of Commissioners and as Plaintiff's
supervisor, Mitchell had knowledge of Plaintiff's relationship with Collier County.
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32. On or about August 14, 2013, pursuant to Plaintiffs First Amendment rights
to freedom of political expression, and on Plaintiff's own time and outside of her
employment, Plaintiff attended a political election night celebration, wherein Plaintiff wore a
political t-shirt prominently supporting Commissioner Henning, and proudly embraced and
posed for a photograph with her daughter wearing a t-shirt prominently supporting Tim
Nance ("Nance") for County Commissioner ("the Political Expression"). (At the time,
Nance had just won his seat on the County Commission defeating Commissioner Coletta,the
incumbent. It was the first time in two decades a sitting commissioner lost an election. It
was also widely believed that Nance's victory would shift the balance of power within the
County Commission, forming a new majority block which would include Commissioner
Henning, who represented an opposing viewpoint from Commissioner Coletta.) The
Political Expression was captured in a photograph and displayed on Facebook.
33. Mitchell strongly supported Commissioner Coletta. Plaintiff upset Mitchell
by politically supporting Nance and Commissioner Henning on her own time. Mitchell was
so upset by Plaintiff's political activities, that on or about August 16, 2012, Mitchell (or
someone acting on Mitchell's behalf) downloaded the photograph of the Political Expression
from Facebook and placed the photograph in a file concerning Plaintiff kept by Mitchell.
From this point, Mitchell planned to discipline Plaintiff and terminate her employment
because of his disdain for Plaintiffs personal political activities, including Plaintiffs support
on her own time for Commissioner Henning and County Commissioner Nance.
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34. Following the Political Expression, Mitchell began ignoring Plaintiff at work
(intensifying a trend of hostile behavior against Plaintiff due to Plaintiffs perceived political
association with Commissioner Henning and/or Nance).
35. At a public hearing on September 26, 2012, Mitchell asked the Board of
Commissioners to terminate his employment. In light of the election results, Mitchell did not
want to continue working for the Board of County Commissioners.
36. After Mitchell asked to be terminated, on or about October 10, 2012, Plaintiff
arrived at work only to be intercepted by security. Plaintiff was then ushered into a
conference that included Mitchell and a co-worker, Ken Mayo. Plaintiff was handed a letter
of termination dated October 4, 2012, told she was being paid for that day, and told that she
would send in a list of her belongings and they would be sent to her at a later date.
37. The letter of termination was signed by Mitchell and did not contain language
that anyone other than Mitchell was involved in Plaintiffs termination. Mitchell — on his
way out - terminated Plaintiff in retaliation for her personal political support for
Commissioner Henning and/or Nance. The termination did not follow proper procedure, was
lacking in proper documentation, and there was not appropriate documentation in Plaintiff s
file to support the termination.
38. At a public hearing on October 23, 2012, Commissioner Georgia Hiller
admitted that there was no evidence in Plaintiffs Human Resources file to support her
termination and that Plaintiffs termination was lacking in proper documentation.
Commissioner Henning, who Plaintiff worked for directly, admitted that there was no reason
from his perspective for the termination and that to date he had not received additional
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information regarding why Plaintiff was being terminated. Commissioner Coletta
acknowledged that the photograph's analysis was indicative of a "political problem"
surrounding Plaintiffs termination.
39. Moreover, Commissioner Hiller confirmed that it was Mitchell who caused
the termination of Plaintiff's employment and not anyone else. County Attorney Klatzkow
also confirmed that"the termination was Ian [Mitchellj's termination decision."
40. Mitchell's interference with Plaintiff's relationship with Collier County was
intentional and unjustified.
41. In causing the termination of Plaintiff's employment with Collier County,
Mitchell acted solely with an ulterior purpose, to wit, to retaliate against Plaintiff for
providing political support to Commissioner Henning and Commissioner Nance. As a strong
supporter and friend, of Commissioner Coletta, Mitchell harbored ill will and hatred towards :,
Plaintiff due to her political expressions and associations, and it was this ill will and hatred
towards Plaintiff exclusively which resulted in Mitchell's decision to cause the termination of
Plaintiff's employment.
42. Collier County has an interest in retaining Executive Aids, like Plaintiff,
performing in a satisfactory manner, and maintaining continuity between the County
Commissioners and the Executive Aids assigned to serve them. By terminating Plaintiff,
Mitchell's actions against Plaintiff were against Collier County's best interests and to Collier
County's detriment because Mitchell caused Commissioner Henning to suffer the loss of his
Executive Aid (Plaintiff), who was performing for Commissioner Henning in a satisfactory
manner. As a result of Mitchell's actions, Commissioner Henning lost time and energy, and
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devoted extra time and energy, to handling and/or re-assigning Plaintiffs assignments, and to
re-training replacement(s) for Plaintiff. Put simply, Plaintiffs termination resulted in an
unnecessary disruption for and distraction to Commissioner Henning.
43. Plaintiff has been damaged by Mitchell's intentional and unjustified
interference with her business relationship, and has suffered damages, including without
limitation, the loss of pay and benefits, loss of advancement opportunity within Collier
County, and the overall damage to her reputation that will affect her employability for the
foreseeable future.
44. Plaintiff has also experienced emotional distress, and lost enjoyment of life as
a result of Mitchell's intentional and unjustified interference with her business relationship.
45. Mitchell's actions were taken with the malicious intent to harm Plaintiff.
46. Plaintiff has engaged the undersigned counsel and agreed to pay him a fee.
47. All conditions precedent to the filing of this action have occurred or have been
waived.
WHEREFORE, Plaintiff, Evelyn Prieto, demands judgment for damages against
Defendant,Ian Mitchell, and for such further relief as the Court deems just and proper.
DEMAND FOR JURY TRIAL
Plaintiff does hereby demand a Jury Trial on all issues and claims so triable.
Bradley P. Rothman
Florida Bar No. 0677345
brothman @weldonrothman.com
WELDON & ROTHMAN, PL
7935 Airport-Pulling Road N., Suite 205
T
rro 111 „f1.l
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Naples, Florida 34109
Tel: (239)262-2141
Fax: (239)262-2342
Counsel for Plaintiff
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•
•
' RESOLUTION NO. 95- 632
A RESOLUTION SETTING FORTH THE POLICY OF THE BOARD
OF COUNTY COMMISSIONERS WITH REGARD TO PROVIDING A
LEGAL DEFENSE AND PAYING LEGAL EXPENSES OF COUNTY
COMMISSIONERS, COUNTY STAFF AND COUNTY ADVISORY
BOARD MEMBERS. •
WHEREAS, the Board of County Commissioners and the Collier
County management and legal staff are constantly presented with
the necessity for making decisions regarding all phases of
County policy, management and legal counsel, respectively; and
WHEREAS, local governments and their employees have
recently become subject to increasing numbers of lawsuits based
upon state and federal laws; and
WHEREAS, it is essential to the effective operation of
County government that policy, management and legal decisions
be made competently, in the public interest, and with the
threat of personal liability for board and staff members for
"'""141 making said decisions being maintained at a minimum so as to
avoid the "chilling effect" on the proper and diligent
performance of public duties recognized by the Florida Supreme
Court in Thornber v. City of Fort Walton Beach, 568 So.2d. 914
(1990) ; and
WHEREAS, Florida statutory and case law, as well as
Attorney General opinions (hereafter referred to as "AGO"), set
forth the requirements and discretion which are afforded to the
local governing body to formulate a policy regarding the
provision of counsel and payment of legal expenses for Board
members, County staff and advisory board members who are
involved in litigation arising out of or in connection with the
performance of official duties and while serving a valid public
purpose; and
WHEREAS, Collier County insurance policies currently
include County employees as well as Board members and members
of the Administrator's and County Attorney's staff within the
llikscope of coverage, provided that said persons are acting within
the scope of their employment and do not act criminally or
fraudulently; and
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•
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WHEREAS, the Board of County•Commissioners (hereafter also
referred to as "Board") desires to hereby set forth and
formalize its policy with regard to the provision of legal
counsel and the payment of legal expenses incurred by County
Commissioners and administrative and legal staff so as to
promote competent decisions and conduct in the public interest
while reducing the threat, intimidation and chilling effect on
performance of official duties created by potential personal
liability for County Commissioners and County staff members
while acting in the scope of their official duties and while
serving a valid public purpose.
WHEREAS, the various advisory boards, quasi-judicial
boards and regulatory boards (hereafter also collectively
referred to as "advisory board(s)") formed by the Board of
• • . County Commissioners, and the members thereof who are appointed
I. by the Board of County Commissioners, serve a critical function
• with regard to the operation of Collier County Government; and
WHEREAS, the members of such boards serve on a volunteer' •
basis without compensation for the time spent in performing
their duties and functions; and
WHEREAS, said boards and board members are regarded by the •
• Board of County Commissioners as being within the umbrella of
' legal protection afforded to the Board of County Commissioners
and other Collier County employees; and
WHEREAS, the Board hereby desires to set forth and
formalize its policy with regard to the provision of legal
counsel and the payment of legal expenses incurred by advisory
board members so as to promote competent decisions and conduct
in the public interest while reducing the threat, intimidation - •
and chilling effect on performance of official duties created
by potential personal liability for advisory board members
while acting in the scope of their official duties and while
• serving a valid public purpose.
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that:
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1. Definition' of "County person(s)": As used in this
Resolution, the term "County person(s)" shall mean and include
the members of the Board of County Commissioners, the County
Administrator and his staff, the County Attorney and his staff,
all employees of the Board of County Commissioners as well as
the Collier County Airport Authority Director and his staff,
the Director and staff of any other County-created authority,
the officers and staff of any dependent or other special
district for which the Collier County Board of County
Commissioners is the governing body or ex-officio the governing
body thereof, and any person appointed by the Board of County
Commissioners to a Collier County Advisory Board,
quasi-judicial board or regulatory board formed by the Board of
County Commissioners of Collier County, Florida.
2. Pursuant to Section 121.07, Florida Statutes, and
Thornber v. City of Fort Walton Beach. 568 So.2d 914 (Fla.
1990), the Board hereby resolves to provide legal
representation to County persons in civil actions and in civil
rights actions subject to the limitations set forth herein.
a. Legal representation shall be provided in civil
actions and in civil rights lawsuits only if the
litigation involving the County person to be
represented arises out of or in connection with
the performance of official duties and while
said County person was serving a valid public
purpose. No representation shall be provided in
tort actions if the County person acted or
failed to act in bad faith, with malicious
purpose, or in a manner exhibiting wanton and
willful disregard of human rights, safety or
property. No representation shall be provided
to any County person in a civil action or civil
rights action where said County person acted or
failed to act with intent to harm. No
representation shall be provided in any case
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where the County person has willfully failed to
follow the legal advice furnished by the Office
1 of the County Attorney, unless the Board of
County Commissioners specifically finds,-.at a
public meeting, that said failure to follow
legal advice was for reason(s) within the County
person's scope of employment and served a valid
public purpose.
b. Collier County shall at all times have the
discretion to determine whether to directly
represent such individual through the County
Attorney's office or to select counsel to
represent said County person in the civil action
or civil rights action. If a County person
chooses to obtain private legal counsel without
prior authorization from Collier County, all AI Ilk
fees and/or costs incurred by such person shall
be the sole responsibility of said person and
Collier County shall accept no responsibility
for payment of legal fees and/or costs.
c. Any legal fees and/or costs properly payable
under this Policy must be reasonable in amount.
d. Pursuant to Section 111.07, Florida Statutes,
any attorney's fees and/or costs paid or
incurred by the County for any County person who
is found to be personally liable by virtue of
acting outside the scope of employment, in bad
faith, with malicious purpose, or in a manner
exhibiting wanton and willful disregard of human ` '
rights, safety or 'property, may be recovered by
the County in a civil action against such County
person.
e. Notwithstanding anything else stated in this
section or this Resolution, the Board shall have
the sole and absolute discretion allowed by
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Section 111.07, Florida Statutes, as well as by
applicable case law, to not provide legal
representation and to instead reimburse any
County person for reasonable attorney-, fees
and/or costs in the event that said County
person prevails in the civil or civil rights
action.
3. Pursuant to Sections 111.071 and 111.072, Florida
Statutes, the County shall pay for final judgments, settlements
and/or costs involving County persons in civil actions and in
civil rights actions subject to the limitations provided
herein.
a. Collier County shall pay final judgments,
settlements and/or costs involving County
persons only where the litigation arose out of
1 or in connection with the performance by the
County person of official duties and while
• serving a valid public purpose. No final
judgment, settlement or costs shall be paid for
by the County in a civil action or a civil
rights action if the County person against whom
the final judgment, settlement and/or costs have
been imposed has acted or failed to act with
intent to harm. The County shall not pay any
final judgment, settlement and/or costs in tort
actions where a County person has acted or
failed to act with bad faith, malice or with
wanton and willful disregard of human rights,
safety or property. No judgment and/or costs ' '
shall be paid in any case where the County
person has willfully failed to follow the legal
advice furnished by the Office of the County
Attorney, unless the Board of County
Commissioners specifically finds, at a public
meeting, that said failure to follow legal
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.
advice was for reasons within the County
person's scope of employment and served a valid
I public purpose.
b. Any final judgments, settlements and/or 'costs
paid or incurred by the County shall be in
strict adherence with the sovereign immunity
recovery limits set forth in Section 768.28,
Florida Statutes.
c. If the County person has had private legal
representation in the case, contrary to the
provisions of Section (2) (b) of this Policy,+any
final judgment, settlement and/or costs imposed
• shall be the sole responsibility of said person
and Collier County shall accept no
responsibility for payment of the final
(• judgment, settlement and/or costs.
d. Pursuant to Section 111.071(4), this section is
pot intended to be a waiver of sovereign
immunity or a waiver of any other defense or
immunity to such lawsuits.
4. In cases where a County person is formally charged
with a criminal violation, the County shall pay the legal fees
and/or costs incurred by said County person only under the
following circumstances:
a. The charges against the County person arose out
of or in connection with the performance of
official duties and while serving a valid public
purpose.
b. The County person has been acquitted or the - '
charges dismissed. Z,omelo v. City of Sunrise,
423 So. 2d. 974 (4th DCA 1982) , pet. for rev.
dismissed at 431 So.2d. 988 (Fla. 1983) , and AGO
• 89-33. Al IN
i
c. The legal fees and/or costs charged are = *`
reasonable in amount.
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d. The county person has first notified the County
administration and legal staff of the pendency
of the charges and has permitted the County the
opportunity to either directly provide counsel
or to allow said County person to choose his/her
own counsel.
e. The charges have not resulted from the willful
failure of the County person to follow the legal
advice furnished by the Office of the County
Attorney, unless the Board of County
commissioners specifically finds, at a public
meeting, that said failure to follow legal
advice was for reasons within the County
person's scope of employment and served a valid
• .public purpose.
f. The legal fees and/or costs incurred by a County
• person during the investigatory, pre-charge
stages of a criminal case shall be paid by the
County only for proceedings involving potential
criminal liability for the County person and
where the allegations are ultimately determined
to be unfounded and to have arisen from conduct
related to the performance of official duties
and while serving a valid public.purpose. AGO
94-11. The provisions of Subsections 4b, c, d
and e of this Resolution shall also govern these
cases.
g. In the event that the County person has been
provided legal representation by the County and - "
the County person is found guilty of a criminal
charge, the County may recover from the County
person in a civil action all legal fees and/or
tik costs paid or incurred by the County.
S. The County shall pay legal fees and/or costs incurred
by County persons in cases involving formal ethics charges
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Amok
subject to the limitations provided herein:
a. The ethics charges arose from conduct related to
the performance of official duties and while
"serving a valid public purpose. Ellison v.Reid,
397 So. 2d. 352 (1st DCA 1981) and AGO's 85-51
and 90-74.
b. The County person has prevailed and successfully
defended against the ethics charges.
c. The legal fees and/or costs charged are
reasonable in amount.
d. The County person has first notified the County
administration and legal staff of the pendency
of the charges and has permitted the County the
opportunity to either directly provide counsel
or to allow said County person to choose his/her
4111 own counsel. ANN
• e. .. The charges have not. resulted from the .willful
failure of the County person to follow the legal
•
advice furnished by the Office of the County
Attorney, unless the Board of County
Commissioners specifically finds, at a public
meeting, that said failure to follow legal
advice was for reasons within the County
person's scope of employment and served a valid
public purpose.
f. The legal fees and/or costs incurred by a County
person during the investigatory, pre-charge
stages of an ethics complaint shall be paid by
the County only for proceedings involving = .
potential civil and/or criminal liability and/or
ethics sanctions for the County person and where
the allegations are ultimately determined to be
unfounded and to have arisen from conduct
• related to the performance of official duties
and while serving a valid public purpose. AGO
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94-11. The provisions of Subsections 5b, c, d
and e of this Resolution shall also govern these
cases.
g. In the event that the County person has.. been
provided legal representation by the County and
the County person is found by the Florida Ethics
Commission or other appropriate tribunal having
jurisdiction over the case to have committed
ethical violations, the County may recover from
the county person in a civil action all legal
fees and/or costs paid or incurred by the
County.
h. Nothing in this section shall be construed to
preclude the County Attorney from requesting
formal or informal ethics opinions on behalf of
one or more commissioners.
11 6. The County shall pay legal'fees and/or costs incurred
by County persons in cases involving non-county administrative
and/or regulatory proceedings and/or formal charges subject to
the limitations provided herein:
a. The proceedings and/or charges arose from
conduct related to the performance of official
duties and while serving a valid public purpose.
b. The County person has prevailed and successfully
defended against the proceedings and/or charges.
c. The legal fees and/or costs charged are
reasonable in amount.
d. The County person has first notified the County
Administration and legal staff of the pendency - '
of the proceedings and/or charges and has
permitted the County the opportunity to directly
provide counsel or to allow said County person
to choose his/her own counsel.
e. The charges and/or proceedings have not resulted
from the willful failure of the County person to
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follow the legal advice furnished by the Office
of the County Attorney, unless the Board of
County Commissioners specifically finds, at a
public meeting, that said failure to follow
legal advice was for reasons within the County
person's scope of employment and served a valid
public purpose.
f. The legal fees and/or costs incurred by the
County person during the pendency of the
proceedings and/or the investigatory, pre-charge
stages of an administrative or regulatory case
shall be paid by the County only for proceedings
and/or charges involving potential civil and/or
criminal liability and/or administrative/
regulatory sanctions for the County person and
illwhere the allegations are ultimately determined AIWA
to be unfounded and to have risen from conduct ,
related to the performance of official duties
and while serving a valid public purpose. AGO
94-11. The provisions of Subsections 6b, c, d
and e of this Resolution shall also govern these
cases. .
g. In the event that the County person has been
provided legal representation by the County and
the County person is found, by an administrative
or regulatory agency or other appropriate
tribunal having jurisdiction over the case, to
have civil or criminal liability and/or to have
violated administrative or regulatory rules, the -
County may recover from the County person in a
civil action all legal fees and/or costs paid or
incurred by the County.
• 7. The County shall pay legal fees and/or costs incurred
by individual members of the Board of County Commissioners for
instituting, as opposed to defending, litigation only where all
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of the following circumstances are present:
a. The litigation arises from or in connection with
the Board members performance of official duties
and the litigation serves a valid public
purpose.
b. This section shall apply only to members of the
Board of County Commissioners and not to any
other "County person" defined in Section 1 of
this Resolution.
c. The Board member must prevail in said
litigation.
d. The legal fees and/or costs are reasonable in
amount.
e. The Board member shall have first notified the
Board of County Commissioners, the County
.Administrator and the County Attorney prior to
the commencement of .the litigation and shall
have permitted the County the opportunity to
either directly provide counsel or to allow said
Commissioner to choose his/her own counsel.
f. The litigation has not resulted from the willful
failure to follow the legal advice furnished by
the Office of the County Attorney, unless the
•
` Board of County Commissioners specifically
finds, at a public meeting, that said failure to
follow legal advice was for reasons within the
Commissioner's scope of employment and served a
valid public purpose.
g. In the event that the Commissioner has been ..
provided legal representation by the County and
the Commissioner does not prevail in the
litigation, then the County may recover from the
' Commissioner in a civil action all legal fees
and/or costs paid or incurred by the County.
8. All preliminary decisions administering and
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implementing this policy shall initially be made by the County
Administrator and/or his designee and the Office of the County
Attorney in cooperation and consultation with each other's
respective offices. Both offices are hereby delegated the
power to make any lawful and reasonable investigation and
evaluation of cases arising under this policy. Said evaluation
shall take into account all available relevant information in
addition to the nature, type, number and substance of the
allegations contained in any pleadings filed and/or served in
any legal proceeding. All final determinations regarding the
implementation and administration of this policy shall be made
only by the Board of County Commissioners which is in
accordance with AGO's 85-51, 89-22, 90-74 and 91-58. The Board
shall also make all final determinations regarding the
provision of a legal defense and/or paying legal expenses of
County persons f
• or any type of legal claim or suit arising from
a County person's performance of official duties while serving
a valid public purpose if said type of claim or suit is not
specifically addressed by this Resolution.
9. Collier County Board of County Commissioners
Resolution Nos. 85-126 and 85-178 are hereby repealed and
superseded in their entirety.
This Resolution adopted after motion, second and majority
vote favoring same.
. •DATED: //y/?--
•ATTEST:%•'.> BOARD OF COUNTY COMMISSIONERS
DWIGK1'E:-.BROOK, Clerk COLLIER COON , FLORIDA
r
rev.41 ._ ; ._-� By:
' ,BETTYE . JTTHEWS, Chairman
v
Approved as to form and
•
legal"suTficiency:
(/)-71;v,• 7.67/717,(,-r?
•
-Ramiro Man L
• ich
Chief Assistant County Attorney
nn ilk
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