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Agenda 03/24/2009 Item #16K 2 i:em !'k.. CI\2 MeiTh 24. :~c:C(9 Pag81 of ~D ,'-" EXECUTIVE SUMMARY Recommendation that the Board of County Commissioners authorizes staff to proceed with advertising a proposed Ordinance amending Ordinance No. 2001-55. as amended (the Advisory Board Ordinance). to eliminate both term limits and the restrictions on simultaneous sen'ice on more than two County Boards. OBJECTIVE: That the Board of County Commissioners ("Board") authorizes staff to proceed with advertising the attached Ordinance amending Ordinance No. 2001-55 (the Advisory Board Ordinance) for the purpose of eliminating both tenn limits and the restrictions on simultaneous service on more than two County Boards. CONSIDERATIONS: During the Board's January 13, 2009 meeting, two members of the Collier County Productivity Committee failed to gain reappointment as they had already served two consecutive tenns and did not receive unanimous vote of the Commission. A discussion of the matter followed and a number of questions concerning this process were asked. As a result, 1 provided a memorandum outlining the issue and giving the Board various options that it could pursue. A copy of that January 14, 2009 memo is included as part of this Agenda package. At its March 10, 2009 meeting, the Board reviewed possible amendments to Ordinance No. 2001-55 relating to term limits and directed an amendment to the Advisory Board Ordinance that would eliminate ternl limits and the restrictions on simultaneous service on more than two - County Boards. Additionally, the Board voted to amend the Planning Commission Ordinance, codified in Section 8.03.00 of the Collier Cotmty Land Development Code, to require nomination by the Commissioner of the District which the appointee would represent. This issue is addressed in a separate Executive Summary. FISCAL IMPACT: None. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATlONS: The proposed Ordinance was prepared by the County Attorney and is sufficient for Board's consideration. We are requesting authorization to proceed with advertising the proposed Ordinance for future consideration and adoption by the Board. This is a regular agenda item requiring simple majority vote. -JAK --- RECOMMENDATION: That the Board of County Commissioners authorize staff to proceed with advertising the attached Ordinance amending Ordinance No. 2001-55, as amended, (the Advisory Board Ordinance) for the purpose of eliminating both ternl limits and the restrictions on simultaneous service on more than two County Hoards. PREPARED BY; Jefffey A, Klatzkow, County Attorney ~ Item Number: Item Summary: Meeting Date: COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 15K2 Page I of ] -1,'~;a :::'c::n ;so. :><2 f','lar";h 2V.<j ':Jf 10 R8corninsndatlon that the Board of County Cormn!2sioners authol"izes staff to proceed with advertising a propcsed Ordinance ary!ending Ordinance No 2001-55, as amended. (the Advisory Beard Ordinance) to 811minate both term limits and the restrictions on simultaneous ;:,'::I-vj,:::e on mere t~lan two COWlty BCi:Jrds 3/2:4/2009 9:00:00 i;iV1 Prepared By Jeff KlatzkoN County Attorn0Y ~.ssistant County Attorn"y Date COli'1ty AH~)["ley Cffic:e ::,,'13:~009 2:S6:~5 PM Approved By Jeff Klatzlw'"" County Attorney A-,ssistant County Attorney Date County Attoncy Office J:-:3!:::OG9 4 :09 ?M Approved By or/iS Coordinator Cc,lunty Man3-gc)I's Office CM8 Coordinator Date Olk€; of r"innaLH:ln;enl &. Budget :::12./2JGS 4:22 Pf..1 A pproved By .Jo:--:n A. Yor:~:;:>sLv County !V;<!r.?g8.'S OH:,::,: Dirs<:br of e\!; C'7Ti(.t" of r\'i::H,",,?e:110 '1t Do-;tc C'ffice of r'.~a,;ag8;Y::;" ,'; & B:.:d:,d 21: 5:'20n 9:23 t.M A ppro\'ed By James V. f\:'j'eJdd Board of County CommiSS!Ol~crs C8t_~',ty hli,mager u"r:€- County [;.1anager'5 Office 2iiCl20G9 9:G5 !\f\.1 1;-2;'n i<,,), -1 Cil<:Z ["'::'11 ~'-h :::-'~, 2nC::3 30; :0) ORDINANCE NO, 2009- AN ORDINANCE OF THE BOARD OF COU~TY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AMENDING ORDINANCE NO. 2001-55, AS AMENDED, WHICH ESTABLISHED STANDARDS FOR CREATION AND REVIEW OF COUNTY BOARDS, BY AMENDING SECTION FIVE, "QUALIFICATIONS AND REQUIREMENTS FOR MEMBERSHIP ON BOARDS," TO ALLOW SERVICE ON MORE THAN TWO COUNTY BOARDS SIMUL TANEO{1SL Y, AND SECTION SEVEN, "TERM OF OFFICE," TO ELIMINATE TERM LI:\lITS; PROVIDING FOR CONFLICT AND SEVER-\BILITY; PROVIDING FOR INCLUSION IN THE CODE OF LAWS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, in keeping with its policy to promotc cconomy. efficiency and improve service in the transaction of the public business by County Boards, the Board of County Commissioncrs, through adoption of Ordinance No. 200 I-55, established standards for creation and review of County boards; and WHEREAS. Ordinance 2001-55 was subsequently amended through the adoption of Ordinance No. 2006-39 and Ordinance No. 2007-58; and WHEREAS, the Board of County Commissioners dcsires to further amend Ordinance No. 2001-55. specifically, Section Five entitled. "Qualifications and Rcquircments for Membership on Boards," to allow persons to serve on more than two County Boards simultaneously, and Section Seven entitled, "Term of Office," to eliminate terms limits. NOW. THEREFORE. BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY. FLORIDA. that: SECT/ON ONE: AMENDMENT TO SECTION FIVE OF ORDINANCE NO. 2001-55, AS AMENDED. Section Five is hereby amended to read a follows: SECTION FIVE: QualiJlcations and Requirements for Membership on Boards. .1\. /\1! nH~!1lbcrs of ('()L!!1ty 8mlrds shn!! be permanent !"esidcnts and electors of Collier County and should be reputable and active in community service. The Words Lnderlineu are aJdl'd: Words ~:trHel: Throu)l are deleted. Page 1 of:; It'2i:^1 '~'). 1 s:i<2 " ~1 " . 1",0: '_',h 24, ~<~C19 J. of10 foregoing requirement may be exempted, however, if an ordinance creating a board specifies the need for membership outside Collier County's boundaries. In addition, all Board members should have demonstrated an interest in the activity or service, which is the purpose of the Board. The provisions of this paragraph may be excmpted, however, if an ordinance creating a board specifies the need for membership outside Collier County's boundaries. B. Any member of a County Board who ceases to be a resident of Collier County during his or her term of omce shall immediately advise the Commission of such change in status. Upon such notice, the Commission shall declare the position to be vacant and sball promptly fill same pursuant to the provisions of Section Six, herein. C. The Commission's primary consideration in appointing Board members shall be to provide tbe Board with the technical, professional, financial, business or administrative expertise neccssary to effectively accomplish the Board's purpose. Categories of expertise referenced by County Board's Ordinances as qualifications for board membership are considered to be primarily directory and not mandatory. D. No person shall scr'. e on more than t.,',o County Boards simultancouc;ly. If application is made for "en'ice on a third board, the applicant must rcc;i;n simultaneously ti'om one of l,is or her current Board positions, or the application for a third board shall be disqHalitied. This pro'.-isi0lH, ho....e'.er, may be '...-ai'.-ed to all 0\''- for ser\ ice on addi~ional Boards pro'. ided the Commi.;sion '.otcs unanimoH:;!Y to '.\ai'. e SH€h provision. fh D. No member of any County Board shall become a candidate for an elective political office and continue to serve on such board during his or her candidacy unless such Board member/candidate is running unopposed for a non- remunerative elective position or an elective position receiving nominal remuneration, such as thc Mosquito Control District Board or a fire district board. Should any County Board mcmber compete for an elective non-remunerative political office or a nominally-remunerative political office on the date applications lor candidacy expire. such candidacy shall be deemed a tender of resignation tram such Board and the Board shall immediately advise the COlllmission in wri1ing ofsnid resignation. No Board ~1ember shall be required \\lords Underlined are added; \"ords Stn,I€L Throu)l arc dcktcd. Page .2 of 5 ii2!1l i h. ,:)'.2 ,,' ir(~h 24, 2009 PaJi? 5 (jf 10 to resign or decmed to have tendered his or her resignation unless such candidacy is being opposed. The Commission shall deem the position vacant upon receipt of written notice of said resignation. The Board member shall not serve at any meetings after his or her position becomes vacant pursuant to this Ordinance. This provision shall not apply to candidates who currently serve in elected positions and who are seeking re-election. J2,. E. The commencement of a legal challenge by a Board member as a plaintiff in a lawsuit against Collier County shail constitute a conflict of interest with Collier County and shall be dcemed a tender of resignation ft'om such Board. The County Board member's position shall automatically be considered vacant and the Commission shall promptly jjll same pursuant to the provisions of Section Six, herein. Go L No member of any County Board, as deflned herein. shall print or create, or have printed or created, or use or distribute any busincss or in fClrIl1ational card depicting the County logo or in any \vay representing such Board mernber as a representative of Collicr County or as a County Board member. The County Manager or his or her designee may. upon request and prior approval in writing. authorize the County Board members to obtain a County photo identijjcation card identifying such members as a County advisory Board member. SECTIO:"\T TWO: AMENDMENT TO SECTION SEVE:"\T OF ORDINANCE NO. 2001-55, AS AMENDED. Section Seven is hereby amended to read a follows: SECTION SEVEN: Term ofOt1ice. A. Terms ofonJee shall be staggered. B. Terms 0 I' 0 ffiec for Board members shn-l-l--h€ limited to t..'.o consecuti'. c terms of ,;er','ice on anyone Board; provided, hlW,c',','r, that appoin:lHent of a Board member (0 an initial term of one ycar shall not be considered a ":orm of 0 mee" J():' pu:'pose of the !il11itlt:ons set forth in this :'ee:ion, and c;ueh members .;hall be entitled to sene L"o additional terms if ,'0 appc>i-ffie&.- C. .'-['['ointment.; to fill Cl ,<"Cleancy fllt- the remaiH6ff--<clr balance of a :erm of oftle0 shall be considered a term olulliee 1(11' :he purpo.;e of:he limitations c;ct f01~h in \Vords Lnderlint'd arc added; WClrds ~truzl; rhr8'.l~h 3rt' deleted. Page 3 ofS !tS,Ti ~,jJ. i 6h2 ~JC:Fch 24, 2CC9 6 of 10 ,;ubc;ection (b), abo'..e, unly if the remainder of the term to be served eKceeds 50 percent ufthe full term. D. go' unanimous '..ote of the cuml11is~:ion, the limitations set forth in subseetion (b) abo.. e n,ay be 'sai.. ed. E. Nothing set fortI, in this section shall prohibit any individual from being reappuin:ed to a board after a hiatus of t.....o 0 ears. ~ B. All membcrs of Boards crcatcd by the Commission shall serve at the pleasure of the Commission and may automatically be rcmoved by a majority vote of the quorum of the Commission. SECTION THREE: Conflict and Severability. In the event this Ordinance conflicts with any other ordinance of Collier County or other applicable law, the more restrictive shall apply. If any phrasc or pOliion of the Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemcd a separate. distinct and independent provision and such holding shall not affect the validity of the remaining portion. SECTION FOUR: Inclusion in tbe Code of Laws and Ordinances. The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinances of Collier County. Florida. The sections of the Ordinances may be renumbered or relettered to accomplish such, and the word "ordinance" may be changed to "section," "miicle," or any othcr appropriate word. All rcfcrences in the Code of Laws and Ordinances to Ordinance \io. 86-41 and its amendments shall be changed to reflect the number assigned to this Ordinance. SECTION FIVE: Effective Date. This Ordinance shall become ctTective upon receipt of notice from the Secretary of State that this Ordinance has been filed with the Secretary of State. "'--'> Words Underlined arc added; \\,'ords Stn;J(?L Throu;h arc deleted. Page 4 of5 :~-:;,'n !'~(). '; ,~'i<2 \;2Jch 24. 2:]09 7 of 10 PASSED AND DULY /\DOPTED by the Board of County Commissioners of Collier County, Florida, this __day 01'___,_ ,2009. ATTEST: DWIGHT E. BROCK, CLERK BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: , Deputy Clerk By: DONNA FIA!.!\. CHAIRMAN Approved as to form and legal sufficiency: Jeffrey A. Klatzkow County Attorney \VorJs Lnd~rlined are added: \\'ord5 StrH:I: Throu;h arc deleted. Page 5 01'5 TO: FROM: DATE: RE: ':'_<;~;!ICd ;,''::;~;I ;J(J. 1')~,:2 ~ [\,1::;,:":-;h 24 2Cl09 3 of 10 OFFICE OF THE COUNTY ATTORNEY MEMORANDUM Commissioner Donna Fiala, Chairman, District 1 Commissioner Frank Halas, Vice-Chairman, District 2 Commissioner Tom Henning, District 3 Commissioner Fred Coyle, District 4 Commissioner James N. Coletta, DiStri~ Jeffrey A. Klatzkow, County Attorney ~ January 14, 2009 January 13,2009 BCC Meeting, Item 9E Appointment of Members to the Collier County Productivity Committee During yesterday's Board Meeting, two present members of the Collier County Productivity Committee failed to gain reappointment as they had already served two consecutive terms and did not receive unanimous vote of the Commission. A discussion of the matter followed, a number of questions coucerning this process were asked, and I advised the Board that I would get back to the Board with a memorandum outlining the issue and giving the Board various options that it could pursue. ~ Section 2-832 of the Collier Code of Laws and Ordinances, which codified Ordinance No. 01-55 (the Advisory Board Ordinance) provides as follows: Sec. 2-832. Term of office. (a)Terms of office shall be staggered. (b)Terms of office for board members shall be limited to two consecutive terms of service on any one board; provided, however, that appointment of a board member to an initial term of one year shall not be considered a "term of office" for purpose of the limitations set forth in this section, and such members shall be entitled to serve two additional terms if so appointed. (c)Appointments to fill a vacancy for the remainder or balance of a term of office shall be considered a tenn of office for the purpose of the limitations set forth in subsection (b), above, only ifthe remainder of the term to be served exceeds 50 percent of the full tenn. (d)By unanimous yote of the commission, the limitations set forth in subsection (b) above may be waived. (e)Nothing set forth in this section shall prohibit any individual from being reappointed to a board after a hiatus of two years. (f)AlI members of boards created by the commission shall serve at the pleasure of the commission and may automatically be remoyed by a majority vote of the quorum of the commlSSlOn. '-';1'C--;LI:..::l'l~ilil,,?r';:;,<':-L !\:3r~::: :'4, ,=0:19 ":Jf '0 Simply put, the Advisory Board Ordinance creates a term limit for all advisory board members of two terms, with the ability of the Board of County Commissioners to waive this limitation by unanimous yote. The first issue is giyen the yote, absent a motion for reconsideration, when is the earliest that these two present members could be reappointed to serve? Under the Ordinance, these two individuals would haye to wait two years before being reappointed to the Productivity Committee. The second issue is whether L1e Board could as--ncnd the Advisory BOaid Ordinance and, in effect, nullify yesterday's vote. After consulting with one of our local government outside counsels, Greg Stewart of Nabors Giblin, if so inclined the Board could do the following: 1. Amend Sec. 2-852 in one of two ways, depending upon whether the Board wishes (1) simple majority action for any advisory board applicant irrespective of the number of terms served, or (2) to change the unanimous requirement to supermajority approval for an applicant who has served two terms. The amendments would look substantially as follows: Sec. 2-832. Term of office. Sec. 2-832. Term of office. (a)Terms of office shall be staggered. (b)TemlG of office for bo81-<l fReml3efS shall be lifRiteElle (y/o eons.sliti'ie leffi1s of servise OR any Of'" board; provided, howeyer, that ap]'leiRtfR:nt of a boanl member ~o an initial term of ORe year shall not be 'BRsiacre!! a "teffi1 ef offiee" for pmpose ef the limitatioas sel forth iR tllis seetioR, and such mcmhers shall bo ealitlea te serie two aeeitioaal terms if so Elfll'eiRted (c)f.l'J3ointmBRts te fill a yacancy fur the remaiRser Br balance of a term of office shall be coasiaerea a term of offiee for the p<H1'ose-<>H"e limitatieRs set fBftft-+n subseotieR (b), ahove, aaly ift"e re!HaiRdo,. oft"o term Ie be served eXBeeds 50 ]'lereeRt of the fulltcfIR. (d)By unaaimellG vate afthe eommissioR, the limitatioRs set fORh iR GlibseetiaR (b) ahave may be wahed. (e)Nothis;; set forth is this seeliaR shall prohibit aay iRdiyidual frem beiR;; rea]'lJ3affiteElta a board after a hiatus oft""o years. (fQ)AIl members of boards created by the commission shall serve at the pleasure of the commission and may automatically be remoyed by a majority vote of the quorum of the comnl1SSlOn. (c)1Oe number of terms for board members sball not be limited. Sec. 2-832. Term of office. (a)Tenns of office shall be staggered. (b)Terms of office for board members shall be limited to two consecutive terms of service on any one board; provided, howeyer, that appointment of a board member to an initial term of one year I :-:''''-ii.::iiVd Ilt.:::iil i~TI0.r',L ~ ~\,1arch 24, 2ClCi9 PagelQof10 shall not be considered a "term of office" for purpose of the limitations set forth in this section, and such members shall be entitled to serve two additional terms if so appointed. c)Appointments to fill a vacancy for the remainder or balance of a term of office shall be considered a tenn of office for the purpose of the limitations set forth in subsection (b), above, only iflhe remainder of the term to be served exceeds 50 percent ofthe full tenn. (d)By unanimsHs supennaiority vote of the commission, the limitations set forth in subsection (b) above may be waived. (e)Nothing set forth in this section shall prohibit any individual from being reappointed to a board after a hiatus oflwo years. (i)All members of boards created by the commission shall serve at the pleasure of the commission and may automatically be removed by a majority vote of the quorum of the comrmSSIOn 2. Following amendment of the Ordinance, readvertise the position. 3. If the first amendment approach is taken, the Board may then appoint any qualified applicant it desires by simple majority vote, including either one or both of the present members whose appointment failed yesterday. If the second amendment approach is taken, the Board could appoint any qualified applicant it desires who has not served two tenns by simple majority vote or, in the case of an applicant who has served two tenns, by supennajority vote, including either one or both of the present members whose appointment failed yesterday. Consideration was given to amending the Ordinance retroactively, however, after researching this issue it was felt that doing so raised a number of legal concerns that the above approach avoids, with no advantage to the proposed approach. Although I believe that the Board may lawfully take this action, as with all new precedents I would caution the Board to give due consideration to the policies that would be both extinguished, and created, by amending this Ordinance. This Board previously decided it was important to create tenn limits for Advisory Board Members that could only be waived by unanimous vote. This empowers each of you to block a member of an advisory board from being reappointed after two terms. Ifthe Ordinance is amended, this power will be lost. One of the advantages of maintaining the status quo is that by its very nature, term limits eventually resolve various difficult issues, including those arising with age, which issue one Commissioner may be aware of but be reluctant to publicly discuss during the appointment process. Lastly, by amending this Ordinance the Board is also in effect circumventing its reconsideration policies. Should the Board seek such an amendment, future acts by the Board could likewise be circumvented by a substantially similar process.