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Agenda 04/14/2009 Item #17F Aoenda Item No. 17F v April 14, 2009 Page 1 of 10 EXECUTIVE SUMMARY Recommendation that the Board of County Commissioners adopts an Ordinance amending Ordinance No. 2001-55, as amended (the Advisory Board Ordinance), by eliminating term limits and the restrictions on simultaneous service on more than two County Boards, and in addition, deleting the provision entitled "Review of Boards" in its entirety. OBJECTIVE: To implement Board direction by amending the Advisory Board Ordinance to eliminate term limits and the restrictions on simultaneous service on more than two County Boards, and in addition, deleting the provision entitled "Review of Boards" in its entirety. 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 terms and did not receive unanimous approval by the Commission. A discussion of the matter followed and a number of questions concerning this process were asked. As a result, I 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 Telating to term limits and directed an amendment to the Advisory Board Ordinance that would eliminate term limits and the restrictions on simultaneous service on more than two County Boards. At its March 24, 2009 meeting, the Board authorized staff to proceed with the amendments relating to term limits and simultaneous service on more than two County Boards. The Board also directed that the provision, entitled "Review of Boards," be deleted in its entirety. FISCAL IMPACT: None. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: The proposed Ordinance was drafted by the County Attorney, was duly advertised, and is legally SUffiC!:' nt for Board action. This is a non-quasi judicial matter requiring simple majority vote. -JAK RECOMMENDATION: That the B ard of County Commissioners adopts the attached Ordinance amending Ordinance No 2001-55, as amended (the Advisory Board Ordinance), by eliminating term limits and the restrictions on simultaneous service on more than two County Boards and in addition, deleting the provision entitled "Review of Boards" in its entirety. PREPARED BY: Jefirey A. Klatzkow, County Attorney Page I of I Aoenda Item No. 17F - April 14, 2009 Page 2 of 10 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 17F Item Summary: Recommendation that the Board of County Commissioners adopts an Ordinance amending Ordinance No. 2001-55, as amended (the Advisory Board Ordinance), by eliminating term limits and the restrictions on simultaneous service on more than two County Boards, and in addition, deleting the provision entitled "Review of Boards" in its entirety. 4/14/20099:0000 AM Meeting Date: Prepared By Jeff Klatzkow County Attorney Date County Attorney County Attorney Office 3/301200911:48:15 AM Approved By Jeff Klatzkow County Attorney Date County Attorney County Attorney Office 3/31/20092:34 PM Approved By Mark Isackson Budget Analyst Date County Manager's Office Office of Management & Budget 4/71200910:08 AM Approved By Leo E. Ochs. Jr. Deputy County Manager Date Board of County Commissioners County Manager's Office 4/7/200910:39 AM Agenda item No. 1 ~.'F April 14. 2009 Page 3 of 10 ORDINANCE NO. 2009-_ AN ORDINANCE OF THE BOARD OF COUNTY 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 SIMULTANEOUSLY, BY AMENDING SECTION SEVEN, "TERM OF OFfiCE," TO ELIMINATE TERM LIMITS; AND BY DELETING SECTiON i\ilNE, "REVIEW OF BOARDS" IN ITS ENTIRETY; PROVIDING FOR CONFLICT AND SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE OF LAWS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, in keeping with iLs policy to promote economy, efficiency and improve service in the transaction of the public business by County Boards, the Board of County Commissioners, through adoption of Ordinance No. 2001.55, 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 desires to further amend Ordinance No. 2001-55, specifically, Section Five entitled, "Qualifications and Requirements for Membership on Boards," to alIow persons to serve on more than two County Boards simultaneously; Section Seven entitled, "Term of Office," to eliminate terms limits; and to delete Section Nine, "Review of Boards" in its entirety. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: SECTION ONE: AMENDMENT TO SECTION FIVE OF ORDINANCE NO. 2001-55, AS AMENDED. Section Five is hereby amended to read a follows: SECTION FIVE: Qualifications and Requirements for Membership on Boards. Words Underlined are added; Words Struel: Thrsligh are deleted. Page 1 0[5 .Agenda Item No. 17F April 14, 2009 Page 4 of 10 A. All members of County Boards shall be permanent residents and electors of Collier County and should be reputable and active in community service. The 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 pUlpose of the Board. The provisions of this paragraph may be exempted, 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 COllllty during his or her term of office shall immediately advise the Commission of such change in status. Upon such notice, the Commission shall declare the position to be vacant and shall 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 the Board with the technical, professional, financial, business or administrative expertise necessary 10 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. Ne )'lerseR shall sOrve eR mere than (we Cellll!)' Be ares silftUkllReetlSl)'. If l!flplieatie8 is meae for gerviee eR a thffij beard, the l!flplieant Hm!lt resign simultans8lisly ftem. eRe sf his af her sun-eat BS9fd 13esitisBS, Elf the apfllieatien far a !hire beaffl shall be diG~ualified, This pr-e,..isioR, ReV/ever, may be ....'Mvea to alley.. fer selviee en additional Baaffls pre,..idad the CeHllBission yales lHlanifReusly te waive rucR prevision. &. 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 lUlOppOSed for a non. remunerative elecLive position or an elective position receiving nominal remlUleration, such as the Mosquito Control District Board or a fire district board. Should any COlUlty Board member compete for an elective non-remunerative political office or a nominally-remunerative political office on the date applications for candidacy expire, such candidacy shall be deemed a tender of Words Underlined are added; Words Struell TlH13l:lgR are deleted. Page 2 of5 .:"genda Item No. 17F ."pril14, 2009 Page 5 of 10 resignation from such Board and the Board shall immediately advise the Commission in writing of said resignation. No Board Member shall be required to resign or deemed 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. F. E. The commencement of a legal challenge by a Board member as a plaintiff in a lawsuit against Collier County shall constitute a conflict of interest with Collier County and shall be deemed a tender of resignation from such Board. The County Board member's position shall automatically be considered vacant and the Commission shall promptly fill same pursuant to the provisions of Section Six, herein. G.- F. No member of any County Board, as defined herein, shall print or create, or have printed or created, or use or distribute any business or informational card depicting the County logo or in any way representing such Board member as a representative of Collier County or as a Cotmty 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 identification card identifying such members as a County advisory Board member. SECTION TWO: AMENDMENT TO SECTION SEVEN OF ORDINANCE NO. 2001-55, AS AMENDED. Section Seven is hereby amended to read a follows: SECTION SEVEN: Term of Office. A. Tenns of office shall be staggered. B. Terms of office for Beara members shall be limited te twa canseeHli'la teFllls of service an all)' eRe BeEl!'d; previaed, bowever, !bat appoi_ent ef a BalH'd :::emae: ~~ an i~i:i=.I ~0:J.-m of or.~ i"a&:" :;~f.~~ ~;:t b: CJfl3iderea a "term tlf I.:JfIielj" f{lf flHl'flese af tRe limitatians sat l<Jrlb ill tms seotieR, and ."en memeers shall be entitlod to serve t',.'e additiaaal terms if sa !If'Jloiated. Words Underlined are added; Words Struck Thraugh are deleted, Page 3 of 5 Agenda Item NO.1 7F April 14, 2009 Page 6 of 10 C. "^,prointments to fill a '<,aGaIla)' for the remainaer or ealanee ef a tefffi of effiee shallee eonsieeree a tCfffi of effiee fer the rliFflose efthe limitations set fert-h in sliBseetion ee ), abeve, only if the reml<ineeT of the tefffi te ee ssP/ed e)[seees 50 rerGent efilie full term. D, By unanimeus yote efthe eemmission, the limitations set forth in sHbseetion eel aasve may Be \ya-i.:ed. E. Nothing set forth in this sestion shaJI rrohibit allY indiyieual from being reaj'ljlsiHlee to a board after a hiatus oft,,<,o years. F, B. 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 Commission. SECTION THREE: DELETION OF SECTION NINE, ENTITLED "REVIEW OF BOARDS," OF ORDINANCE NO. 2001-55, AS AMENDED. Section Nine, entitled "Review of Boards," is hereby deleted in its entirety and the remaining Sections of Ordinance No. 2001-55, as amended, are renumbered accordingly. SECTION FOUR: 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 phrase or portion of the Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion. SECTION FIVE: INCLUSION IN THE CODE OF LAWS AND ORDINANCES. The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordina!1ces of Collier County, Florida. Thc scctions of the Ordinances may be renumbered or relettered to accomplish such, and the word "ordinance" may be changed to "section," "article," Words Underlined are added; Words Stmel: Through are deleted. Page 4 of 5 Agenda Item No. 17F April 14. 2009 Page 7 of 10 or any other appropriate word. All references in the Code of Laws and Ordinances to Ordinance No. 86-41 and its amendments shall be changed to reflect the number assigned to this Ordinance. SECTION SIX: EFFECTIVE DATE. This Ordinance shall become effective upon receipt of notice from the Secretary of State that this Ordinance has been filed with the Secretary of State. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida, this _day of ,2009. ATTEST: DWIGHT E. BROCK, CLERK BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA , Deputy Clcrk By: DONNA FIALA, CHAIRMAN By: Approved as to form and gal sufficiency: ow Words Underlined are added; Words ~TIlr-eugfl are deleted. Page 5 of5 TO: FROM: DATE: RE: Agenda Item No. 17F April 14, 2009 Page 8 of 10 OFFICE OFTHK COUNTY ATTORNEY MEMORANDUM Commissioner Donna Fiala, Chairman, District I Commissioner Frank Halas, Vice-Chairman, District 2 Commissioner Tom Henning, District 3 Commissioner Fred Coyle, District 4 Commissioner James N. Coletta, DiS~ 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 concerning 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 irlltial 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 term of office for the purpose of the limitations set forth in subsection (b), above, only if the remainder of the term to be served exceeds 50 percent of the full term. (d)By unanimous 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 of two years. (f)Ali 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 commISSIOn. ! i I i. , i I I Agenda Item No. 17F April 14, 2009 Page 9 of 10 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 vote. The first issue is given the vote, 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 have to wait two years before being reappointed to the Productivity Committee. The second issue is whether the Board could amend the Advisory Board Ordinance and, in effect, nullify yesterday's vote. After consulting with one of our local government outside counsels, Greg Stewart of Nabors Giblin, ifso inclined the Board could do the following: 1. Amend Sec. 2-852 in one of two ways, depending upon whether the Board wishes (I) simple ml\iority 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 )Terms of effiee for bow-d members sball be limited to !\vo eOBseeHtive terms of sen'iee OR an)' one boare; proviaea, bowe'/er, tbat ajlpointment of a board member to llR iBitial term of ORe year shall Hot be eoasiderea a "term of oftiee" for plilflose of the limitations set forth ia this soction, aHa slieA members shall be entitled to serve tVie additioBal terms ifso ajlpointed (c )AppoinlmeRts to fill a "aCaBc)' for the remainder or balance of a term ef office shall be consiaered a term of office for tho plllflose of tbe limitations set forth in sHbsectioR (b), a8o\'e, OBly if the remainder of the tCfffi te be sen'ed exceeds 50 perceR! of the full tem!. (a)By URanimeus 'lote of the commissien, the limitatiens set forth in subsection (b) above ma)' be waived. (e)Nothilil;; set forth ili this sectioa shall prohibit aa)' indi'lidHal from being reappointea to a board aftor a hiatus of tv/o years. (tQ)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 commISSion. (c)The number of terms for board members shall not be limited. Sec. 2-832. Term of office. (a)Tcrms of office shall be staggered. (b )Tenns 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 Aoenda !tern No. 17F - April '4, 2009 ?age 100f10 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 term of office for the purpose of the limitations set forth in subsection (b), above, only if/he remainder of the term to be served exceeds 50 percent of the full term. (d)By lIBanimOIlG supermaiority 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 of two years. (f)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 commission 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 tcrms by simple majority vote or, in the case of an applicant who has served two terms, by supermajority 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 term 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. If the 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.