BCC Minutes 06/16/1999 B (Sheriff Budget Appeal) June 16, 1999
TRANSCRIPT OF THE SHERIFF'S BUDGET MEETING
OF THE
BOARD OF COUNTY COMMISSIONERS
Naples, Florida, June 16, 1999
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 4:00 p.m. in SPECIAL SESSION in Building
"F" of the Government Complex, East Naples, Florida, with the
following members present:
CHAIRWOMAN: Pamela S. Mac'Kie
Barbara B. Berry
John C. Norris
Timothy J. Constantine
James D. Carter
ALSO PRESENT: Robert Fernandez, County Administrator
David Weigel, County Attorney
Page 1
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA
June 16, 1 999
NOTICE: ALL PERSONS WISH]NG TO SPEAK ON ANY AG~'I)A ITE~I MUST
PRIOR TO SPEAK~G. SPEAKERS MUST REGISTER ~ ~ COUNTY AD~'IS'TRATOR
PRIOR TO THE PRESENTATION OF TEE AGENDA ITEM TO BE ADDIIESSED.
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BEFORE ENGAGI~/G IN ANY LOBBYING ACTIVITI~ (LNCLUDLNG, BUT NOT ~ TO,
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MUST BE SUBMITTED IN WRITING WITH EXPLANATION TO ~ ~'TY
ADMINISTRATOR AT LEAST 13 DAYS PRIOR TO ~ DATE OF THE MEETLNG AN!) WILL BE
HEARD UNDER "PUBLIC PETITIONS'.
ANY PERSON WHO DECIDES TO APPEAL A DECISION OF 'IIHS BO.~,D WH_L ~-nm A
RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND T!:~REFORE MAY NEID TO
ENSURE THAT A VERBATIM RECORD OF THE PROCEEDLNGS IS MADE., WHICH RECORD
INCLUDES THE ~ONY AND EVIDENCE UPON WHICH THI APPEAL IS TO BE
ALL REGISTERED PUBLIC SPEAKERS WILL BE LIMITED TO FB,'E (~ MINUTES
PERMISSION FOR ADDITIONAL TIME IS GRANTED BY THE CHAIR'WO,MAN.
ASSISTED LISTENLNG DEVICES FOR THE HEARING L~iPAII~Fr} ARE AVAILABLE LN THE
COUNTY COMMISSIONIllS' OFFICE.
1. PLEDGE OF ALLEGIANCE
2. CONSIDERATION OF THE SHERIFFS BUDGET APPF_.~I.,.
3. ADJOURN
I
April 13,1999
June 16, 1999
Item #2
CONSIDERATION OF SHERIFF'S BUDGET APPEAL
CHAIRWOMAN MAC'KIE: Okay, we'll call to order the special
meeting of the Board of County Commissioners of -- wow, those
microphones are loud -- for June 16th, 1999. If you'll stand for the
pledge of allegiance, then we will go through our business of the
hour.
(Pledge of allegiance was recited in unison.)
CHAIRWOMAN MAC'KIE: Okay, consideration of the sheriff's budget
appeal. I don't know exactly --
COMMISSIONER CONSTANTINE: Madam Chair?
CHAIRWOMAN MAC'KIE: -- how we might go about this.
COMMISSIONER CONSTANTINE: I bet we might make it go kind of
quick.
CHAIRWOMAN MAC'KIE: Okay. Why don't you take it then? Sounds
like you've got a plan.
COMMISSIONER CONSTANTINE: I don't know, I see a scoff at the far
end of the podium, the dais. Maybe we won't go that quick.
COMMISSIONER BERRY: I want to give the county their money's
worth today.
COMMISSIONER CARTER: I think they'll get that, Commissioner.
COMMISSIONER CONSTANTINE: Yeah, that will come at 5:00.
Just we've had this discussion for some months now, and we've had
a couple of different parts to it, one being the Marco Island issue,
which we've essentially settled. The other being the issue of
reserves.
And I've had a chance not only to review both the materials that
were provided by the Sheriff and by our county attorney, but to speak
with both of them and their representatives. And I also just go in
and dig through the state statutes myself.
I have become convinced that the Sheriff is correct, and can and
should have access to the reserve money. And the suggestion I'm going
to make today is a simple one, and that is that we come to an
agreement with the Sheriff's Department that they do have that access,
that we still set the money aside annually, whatever amount we deem
appropriate, and there's some guidelines that we use to establish
that. But set that money aside in the general fund reserve, but
recognize now and for future years that they do have that. The
statute reads they have a requirement to inform, but that's different
than necessarily having to come and beg permission for it.
So the suggestion I'm just going to make is we go ahead, we use
our regular formula to set aside some reserve money every year, but
acknowledge that they have that. Hopefully that satisfies -- if the
board decides that, that satisfies the Sheriff's needs and we can stop
paying taxpayer money fighting other taxpayer money on appeal in
Tallahassee.
CHAIRWOMAN MAC'KIE: Well, the last thing I'm going to do is
argue with that, because it's exactly the proposal I made in February
that the board rejected. And if there -- I find myself frustrated by
the fact that we've spent as much money as we have and now are willing
to look at it. But nevertheless, far be it from me to get in the way
if we're going to do the right thing. I wish we had done it in
February, but if we can do it today, let's do it.
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June 16, 1999
Is there anybody else who's changed their mind?
COMMISSIONER CARTER: Commissioner Mac'Kie, I don't have a
problem with this. I always looked at it was the checks and balances
before, but upon the information that has been presented to me now, I
think we still have the checks and balances. Ultimately the
responsibility lies with the Sheriff, stays in the general fund. He
can tap it. He has to account for it. I can go along with everything
that's been presented.
I therefore will support -- if Commissioner Constantine wants to
make a motion to that effect, I will support that.
COMMISSIONER CONSTANTINE: If the chair thinks it's appropriate,
I'd make that motion.
CHAIRWOMAN MAC'KIE: I certainly would welcome you to make that
motion. There are other people here who may want to speak or may not
need to speak. And you guys, other board members, may want to weigh
in on this.
Do we have anybody who's registered to speak? Would you like to
speak to us, Mr. Saunders?
MR. SAUNDERS: Madam Chairman and members of the board, just for
the record, Burt Saunders, with the Woodward, Pires, Lombardo Law
Firm, representing the Sheriff. I know not to -- that I shouldn't
speak when things seem to be going in the proper direction. And I
don't want to deter that at all --
COMMISSIONER CARTER: You wouldn't want to talk us out of it,
would you, Burt?
MR. SAUNDERS: No, that I will not do. I just -- when we get
down to the motion, I would like to perhaps have some input into the
wording of the motion, just so that we are clear what the Sheriff's
abilities are in terms of accessing those funds.
I will also state for the record that we have contacted the clerk
of the courts, and it's clear from the clerk's perspective that just
simply notifying the clerk and the commission on the use of those
funds that are in reserves, that is all that is required of the clerk
to write the check.
And I think what Commissioner Constantine has said and
Commissioner Carter has said and the chairman has agreed with is that
the Sheriff will simply notify the board when the Sheriff needs to
utilize those funds, just for informational purposes, not for purposes
of requesting the ability to use those funds. As long as that's clear
on the record, then --
COMMISSIONER CONSTANTINE: Crystal.
MR. SAUNDERS: -- I will remain silent.
COMMISSIONER CONSTANTINE: Not Kinzel, but crystal clear.
CHAIRWOMAN MAC'KIE: And the -- with the notification, I mean,
what I had anticipated -- if anybody can fix that microphone, it's
disconcerting.
COMMISSIONER CONSTANTINE: Good word.
CHAIRWOMAN MAC'KIE: Yeah?
If -- will the notification from the Sheriff include the purposes
for which the funds are to be utilized? Is there any discussion of
that?
COMMISSIONER CONSTANTINE: Yeah, I think that's actually a
requirement. But again, it's -- the question is notification as
opposed to --
CHAIRWOMAN MAC'KIE: Request.
COMMISSIONER CONSTANTINE: -- request.
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June 16, 1999
COMMISSIONER CARTER: I think our county administrator, though,
had a point he wanted to make before we do this.
CHAIRWOMAN MAC'KIE: Why don't you go right ahead and do that.
MR. FERNANDEZ: Madam Chairman, I would offer that this is more
about the dollar amount. It's about the technical nature of the
reserve, which at stake here is roughly 2.9 million dollars.
We've taken the liberty -- we've kind of expected this discussion
from the board from the correspondence that we've seen, and we've done
some analysis. We've taken the material that has been submitted from
the Sheriff, the number of counties that have this kind of reserve
available to them, we have determined what is the amount of that
reserve and the average of the counties that were presented --
CHAIRWOMAN MAC'KIE: Keep trying.
MR. FERNANDEZ: As part of the material provided by the Sheriff,
the counties listed that have a reserve that the Sheriff has access
to, the average amount of funds is .6 percent of the budget. The
amount that we're talking about here is almost 10 times that amount.
CHAIRWOMAN MAC'KIE: And frankly, I have, again from the
beginning -- if we're going all the way back to the Sheriff's budget,
I would have given him the money that he asked for, and it wouldn't
have had to be in reserves, and I wouldn't have made some of the
budget cuts.
And I acknowledge for myself that this is a financial issue. The
question is does the Sheriff have access to another three million
bucks, or does he not?
MR. FERNANDEZ: Right.
CHAIRWOMAN MAC'KIE: And I think --
COMMISSIONER CONSTANTINE: I think there are --
CHAIRWOMAN MAC'KIE: -- the statute -- if you don't mind --
COMMISSIONER CONSTANTINE: No.
CHAIRWOMAN MAC'KIE: -- I think the statute is very clear on what
the rules are about how the reserve is to be treated. We're the ones
who said how much the reserve should be.
COMMISSIONER CONSTANTINE: Exactly. And that's -- there are two
different issues here. One is we're interpreting state statute, and
that's what the appeal was about. The second is what is the county
board's policy as far as what are reserves. And we just need to be
consistent throughout on that.
But that's set locally. And if we want to have that debate, we
can have that on any given day over what county-wide policy is for
reserves. But -- and I understand this year from for this amount it's
a big chunk of money. But as we look at future years, do we -- you
know, is it four percent one year, six percent? Do we stay with our
standard five percent?
We can play with policy across the board in the county for what
reserves are. And I think that's a good, healthy debate to have. I
think that is separate, however, from this. This is acknowledging
state statute, acknowledging whatever that amount should be in any
given year. And whatever we set aside in reserve for that purpose in a
budget year would then be available.
CHAIRWOMAN MAC'KIE: Are we going to have any trouble with the
clerk agreeing or disagreeing with this interpretation, or is the
clerk going to say no?
MR. SAUNDERS: In terms of the Sheriff having access to these
dollars, the clerk agrees that all that is required is a simple
request for the dollars, as would have to be done by any department,
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June 16, 1999
with notification to the board for informational purposes. The clerk
will have absolutely no problem with that. That's the clerk's
understanding of the law, so --
CHAIRWOMAN MAC'KIE: Commissioner Berry?
COMMISSIONER BERRY: I just have a question. What's the purpose
of having the reserve?
COMMISSIONER NORRIS: Mr. Fernandez might answer that.
MR. FERNANDEZ: The purpose that we use for reserve is to address
unanticipated expenditures.
CHAIRWOMAN MAC'KIE: Backup.
COMMISSIONER BERRY: Okay, unanticipated expenditures. Okay.
This all seems to be predicated, from what I read, on the fact that
last year we had this situation with Marco Island. We all knew about
this a long time, so this wasn't any surprise. Sheriff knew about it,
everybody knew about it. Marco Island did not pay up. Frankly, that
wasn't our fault. They had said they would. But that wasn't our
fault.
And so we got into a little discussion about the amount of
services and so forth with the Sheriff in regard to Marco Island.
This year's probably going to be a little bit different, because I
think we've thrown this into the general fund, the funding now, so we
really don't have that same anticipated situation.
However, there's -- you know, they're supposed to also be up and
running with a PSO by the -- January of 2000. That remains to be seen
whether that happens either.
But to me, when you have a contingency fund for a reserve fund,
it's for unexpected things that happen. You don't look at that money
as if the board -- mean 'ol Board of County Commissioners -- and I
don't care whether this is the Sheriff or whatever the situation is.
If the mean 'ol Board of County Commissioners doesn't give me the
money, I know that I can always tap the reserve. I'm going to get it
one way or the other.
So I'm going to tell you what's going to happen from this
commissioner. I'm going to watch the amount of money that goes into
that reserve very, very closely.
COMMISSIONER NORRIS: Agreed. Which brings up the next question
COMMISSIONER BERRY: Absolutely.
COMMISSIONER NORRIS: Pam, what is the legal requirement of
maximum -- minimum that we have to put into reserves for the Sheriff's
budget?
MR. FERNANDEZ: I know of no minimum.
COMMISSIONER NORRIS: It might be exactly the way we do it, but
no minimum.
MR. SAUNDERS: Commissioner Norris, I can -- well, let me refer
to the statute, because I think that that gives guidance. And I will
say that the issue of the access to the reserves really has nothing to
do with Marco Island. This is a legal issue.
The amount of the reserves was set by the Board of County
Commissioners when it did the -- set the budget policies. But section
30.49(7) provides just in the pertinent part that's relevant to what
we're talking about, "The reserve for contingencies in the budget of a
Sheriff shall be governed by the same provisions governing the amount
and the use of the reserve for contingencies appropriated in the
county budget. So the Sheriff gets the same amount as everybody else
does for contingencies.
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June 16, 1999
And then the statute goes on to say, "Except that the reserve for
contingency in the budget of the Sheriff shall be appropriated." And I
-- emphasis on the word shall. Shall be appropriated upon written
request of the Sheriff.
The only difference is in reference to the county department says
you have to give the Sheriff the same amount of reserves, but you
shall appropriate those reserves simply upon his notification of the
board of that. There's no discretion --
COMMISSIONER BERRY: So what's the problem?
MR. SAUNDERS: The problem is simply that the board needs to
state on the record that these reserves are available to the Sheriff
to use for unexpected expenditures of the Sheriff as deemed
appropriate by the Sheriff. And that the Sheriff merely has to notify
the clerk and the board of the use of those dollars, that the Sheriff
doesn't have to come here and say Madam Chairman and commissioners, we
have this expenditure, will you please let us expend those dollars.
That is not within the discretion of the board, pursuant to state law.
COMMISSIONER BERRY: That doesn't bother me. I mean, I could do
with a letter. And that part doesn't bother me.
The thing that bothers me, since I've sat on this board there's
always been a hassle with the Sheriff's Department every year that
I've been here over the amount of money that the Sheriff gets. I
don't want this to be used as whoops, I didn't get all the money I
wanted this year. The day we pass the budget, the next day a letter
comes forward from the Sheriff saying whoops, I need some -- I need to
use my contingency fund for salaries.
If he hasn't budgeted, or his staff has not budgeted the
appropriate amount of money for salaries, because that was mentioned
last year, that he may have to appropriate money for salaries, then
there's something wrong with the budgeting process in the Sheriff's
Department.
And I for one, I'm not going to go along with this, Burt. That's
fine, but I don't believe -- if it comes down to that, then it better
be well noted that this is being used for salaries that were failed to
be budgeted for in the Sheriff's budget. A contingency and a reserve,
to me, Burt, means that if something unexpected happens, a hurricane
blows through Collier County, 10 cars -- setting insurance aside, 10
cars are destroyed, the Sheriff has to replace the radios, et cetera,
et cetera. all kinds of equipment and things that he hadn't
anticipated on, bingo, you've got the reserve fund to tap to get those
dollars. What's the problem?
MR. SAUNDERS: And I certainly don't mean any disrespect to the
board when I say this, but the way the statute is set up, it's to
actually eliminate from the consideration by the Board of County
Commissioners how those reserves are being used by an independent
constitutional officer. He's given the discretion to determine how
and when those dollars that are in reserves are to be used. Now, you
have the discretion to determine how much those reserves are going to
be. But you have to treat everybody the same way. And it's to avoid
those political battles, quite frankly.
COMMISSIONER BERRY: Okay, we can do that.
COMMISSIONER CONSTANTINE: And your point is well taken. And I
think actually you could get into a legal discussion, not here, but
should the Sheriff choose to do that -- I don't think he would, but
should the Sheriff choose to decide October 2nd that he's going to use
that to offset something that he just simply didn't get in the budget,
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June 16, 1999
there are legal mechanisms to address that. Whether or not that falls
under what is the legal definition of reserve and contingency and so
on, I don't know that we'd necessarily want to get into that, but
someone out there might if someone disagrees. The Sheriff's just like
us, if somebody in -- I don't know what you're shaking your head at.
If someone in the public decides to pursue that legally and try to say
no, you didn't have that right, well, God bless them, they can do
that. But --
MR. SAUNDERS: And the Sheriff is elected and the Sheriff has to
be accountable --
COMMISSIONER CONSTANTINE: Ultimately held accountable.
MR. SAUNDERS: -- to the citizens, and so certainly that's the
mechanism to consider that if there's something inappropriate.
COMMISSIONER CARTER: What I hear is we control the amount of
dollars that can be in that reserve, as long as it does not
discriminate against any other constitutional officer. Otherwise, if
it's one percent of whatever it is, and it's the same for everybody,
is that -- that's how that would work?
COMMISSIONER CONSTANTINE: That's correct.
CHAIRWOMAN MAC'KIE: Let me just --
COMMISSIONER CARTER: County Administrator's telling me no.
CHAIRWOMAN MAC'KIE: -- Commissioner Norris has been very
patiently waiting to get in, so let's let him -- while you think about
the answer to that, let Commissioner Norris have his say.
COMMISSIONER NORRIS: Yeah, I appreciate Senator Saunders'
comment that the Sheriff -- that the Board of County Commissioners is
not to dictate to the Sheriff how those funds are to be spent once
that he decides that he's going to use them. I hope you remind him of
that during our budget discussions, because every year we try to
remind him of that when he says well, what do you want me to cut out
of my budget. We don't make that decision. So I hope you remind him.
But we seem to have a little bit of a conflict between what you
said and the staff says relative to what we are required to
appropriate as reserves. Could you answer that for me, Mr. Weigel?
MR. WEIGEL: I think so. I think Mr. Smykowski --
CHAIRWOMAN MAC'KIE: That's your question.
COMMISSIONER CARTER: That's my question. I want to know how
much we need to appropriate.
MR. WEIGEL: What I'll mention in partly addressing the remark is
that even the case law in this as cited in the Sheriff's memorandum of
law, and it was the Supreme Court case of 1975, Weisenfeld V. Dirks
(phonetic), still good law today, and the court stated there that --
it says, and I quote, accordingly, Florida Statute Section 30.494,
which you have before you there, empowers the county to make lump sum
reductions or additions of monies allocated to any of the six budget
items. It does not, however, authorize an intrusion into the
functions which are necessarily within the purview of the office of
Sheriff.
And that case had to do with particular expenditures that the
Sheriff of Manatee County at that time wanted to do and some board
interaction in how that -- the money would be spent.
So the court made itself clear at that point that the county does
have a statutory responsibility to make the lump sum reductions or
additions of monies. That is, increase or reduce by lump sums any of
the six items set out in the statute. Those six items are numbered
one through six under the early part of 30.49 there. Number six is
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June 16, 1999
the fund for reserves.
So from that statute alone, on the Sheriff's budget statute,
indicates that there is obviously significant flexibility and
authority for the board to make its determinations on each of those
elements.
I expect historically the board has made determinations based
upon the applications made by the Sheriff under each of those
elements. And some years maybe all six have had figures placed in
there and some have not.
What Mr. Saunders is indicating or mentioning is that under
subsection seven of the statute, that there should be some uniformity
of application by the board, I think is what he's saying, and that the
reserve for contingencies in the budget of the Sheriff is governed by
-- again, quoting the statute, governed by the same provisions
governing the amount and use of the reserve for contingencies
appropriated in the county budget.
I can't tell you absolutely if the county policy generally
mandates a five percent contingent reserve fund for all agencies or
not. And I think Mr. Fernandez and Mr. Smykowski can answer that.
CHAIRWOMAN MAC'KIE: Let's keep trying to get the answer to that
question. So what about the five percent?
MR. FERNANDEZ: Madam Chairwoman, you have a county budget policy
that currently states that there shall be a reserve contingency in
each fund in the amount of five percent, except the constitutional
officer funds. That's how your policy currently reads.
CHAIRWOMAN MAC'KIE: Does it have any guidelines about
constitutionals?
MR. SAUNDERS: Madam Chairman, let me read the policy, because I
think that that --
CHAIRWOMAN MAC'KIE: Okay.
MR. SAUNDERS: -- that's maybe a little bit unclear in what you
just said. It said operating funds may budget at a minimum of five
percent reserve for contingency. A reserve for contingency is
typically budgeted in all operating funds with the exception of the
constitutional officer funds. Reserves for the constitutional officer
funds shall be appropriated within the county general fund.
CHAIRWOMAN MAC'KIE: Why don't you read that again. Can you get
us mikes again?
MR. SAUNDERS: Let me start all over again, because the amount --
CHAIRWOMAN MAC'KIE: I need to hear it one more time, because I
lost it. I'm sorry.
MR. SAUNDERS: The amount of five percent in this case applies to
constitutional officers. And the policy is clear -- CHAIRWOMAN MAC'KIE: Would you read it again?
MR. SAUNDERS: Operating funds may budget at a minimum a five
percent reserve for contingency. A reserve for contingency is
typically budgeted in all operating funds -- and it's only talking
about where it's going -- with the exception of the constitutional
officer funds. Reserves for the constitutional officer funds shall be
appropriated within the county general fund.
So all it's saying is you appropriate the minimum five percent
for your departments, as well as the constitutional officers. But
with constitutional officers, there's a difference as to where you
place those funds, not the amount of those funds.
COMMISSIONER CONSTANTINE: Can I just -- Madam Chair, there are
two issues here, and one is the reason why we're here, and that's the
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June 16, 1999
appeal and state statute, how that rates. Whether or not we need to
-- whether or not the Sheriff has direct access to reserves. And that
is the only thing we're here to decide today.
The second item, while it's related, we should decide what kind
of reserve policy we're going to have and how much of a reserve they
get during budget hearings. We're not going to decide that today. I
think the point is well made that that may be a flexible amount. It
may be consistent, it may be that five percent, I don't know. But
we're not going to decide that today, nor should we decide it today.
And if we can just stay focused on the one issue, and then maybe at
conclusion give staff some direction on doing some research on the
second issue in preparation for the budget hearings, but let's not
debate that issue today, because we can't decide it.
CHAIRWOMAN MAC'KIE: Because the amount of the reserves that are
in question is fixed. I mean, that's set. We're not talking about
whether or not we can reduce that today. I assume nobody fixed that.
MR. FERNANDEZ: Madam Chairwoman, the reason I brought up the
amount was because the Sheriff requested a specific dollar amount.
And it's 2.9 million dollars, if I remember correctly. Is that the
right amount? 2.9 million dollars. And that's the amount that's at
stake --
CHAIRWOMAN MAC'KIE: I'm clear.
MR. FERNANDEZ: -- over this budget appeal issue that is referred
to by the Sheriff in his request, in his letter to the Office of
Planning and Budgeting of May 19th. I quote from that letter, the
issues of our appeal are in legal -- are legal in nature and not
fiscally nor crime rate comparative. This is not an issue of funding
parity. Indicating that it's only about the legal question of where
to place the reserves.
CHAIRWOMAN MAC'KIE: What you're pointing out to us is the
repercussions --
MR. FERNANDEZ: The repercussions --
CHAIRWOMAN MAC'KIE: -- of the decision on that legal question
are that the Sheriff can tomorrow request 2.9 million dollars and we
can smile and say thank you very much. I personally don't have a
problem with that.
COMMISSIONER CONSTANTINE: Yeah, I think the point is if we put
that much aside in the reserve last year and the state statute says he
has access to that, we're not going to change state statute. I happen
to think state statute does read that way. And if the mistake is we
put too much in last year, well, then we can work on that for budget
policy for the upcoming year. But I don't want to continue to fight a
fight that I think we're going to lose and I think we're on the wrong
side of.
MR. SAUNDERS: Madam Chairman, commissioners, the amount, really,
it is five percent of the operating budget. And the actual amount is
$2,982,100. We've been using 2.9 million, but -- CHAIRWOMAN MAC'KIE: Whatever the number is.
MR. SAUNDERS: -- the number's in your executive summary.
But it is the five percent. We didn't just try to come up with a
number. We tried to make it simple in terms of what we're talking
about. But it is the five percent.
COMMISSIONER NORRIS: Well, is there anybody in this room that
will try to make the case that this is not simply an attempt by the
Sheriff to have an extra three million dollars to spend in this fiscal
year? I mean, is anybody going to have a straight face and come up
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June 16, 1999
here and say that? I doubt it.
CHAIRWOMAN MAC'KIE: I don't have a problem.
COMMISSIONER CONSTANTINE: No, I agree with you, and I wish that
wasn't the way. But I just -- I think that's how the law reads. I
think he is entitled to that. And it doesn't mean I like it, but
that's how the law reads.
CHAIRWOMAN MAC'KIE: Well, what do you not like about it?
Because, I mean --
COMMISSIONER CONSTANTINE: It's not important --
COMMISSIONER NORRIS: Let me explain.
COMMISSIONER CONSTANTINE: -- that's how the law reads. Why are
we talking whether I like it or not? It doesn't really matter. Let's
vote on whether or not we recognize that, or do we want to continue
with the appeal. That's the only issue before us today. CHAIRWOMAN MAC'KIE: It is. Mr. Fernandez.
MR. FERNANDEZ: The Board of County commissioners had the
discretion to determine the total amount of the sheriff's budget.
Within that dollar amount, the board has the discretion to say there
should be a reserve amount that together with the balance equals the
amount that has been appropriated to the Sheriff. You have the
discretion to do that. The Sheriff of course can appeal it.
In other words, you can say that the total dollar amount for the
sheriff's budget, including a reserve, is the same dollar amount as
the dollar amount that you currently have in the Sheriff's budget.
You have the discretion to do that.
COMMISSIONER CONSTANTINE: Are you suggesting we have the
discretion to do that retroactively?
CHAIRWOMAN MAC'KIE: No. Certainly not.
COMMISSIONER CONSTANTINE: I'm not asking you.
CHAIRWOMAN MAC'KIE: I know, but I'm just --
MR. FERNANDEZ: I'm --
CHAIRWOMAN MAC'KIE: -- saying what I --
MR. FERNANDEZ: -- saying in an attempt to resolve this matter in
anticipation of an appeal, you can say that if it is about the legal
question of reserve and only that, then let's resolve that within the
dollar amount that has been appropriated by the board and take a five
percent number and set that aside as reserve.
CHAIRWOMAN MAC'KIE: I guess what he's telling you, Commissioner
Constantine, is if you mean exactly down to the letter what you said,
that you hate giving him the three million bucks, he's giving you the
clever way out.
COMMISSIONER CONSTANTINE: Please don't put words in my mouth,
because that's not exactly the way I said it.
CHAIRWOMAN MAC'KIE: Sorry. I thought -- tell me, you don't hate
the three million bucks? Why don't you say it? He's giving you a
clever out. I don't like it, but I'm just telling you that's what
he's put before you.
And frankly, the whole thing troubles me, because I don't
understand why everybody's gotten smarter than they were in February,
but --
COMMISSIONER CONSTANTINE: Are there any other -- well, maybe you
were just smarter than the rest of us in February. What difference
does that really make? We are where we are. Let's address the issue.
Are there any other public speakers? Because I'd love to make a
motion and move on.
CHAIRWOMAN MAC'KIE: Because the chairman here would like to call
Page 10
June 16, 1999
for any public speakers that may be out there. But you know what? I
get to do that.
COMMISSIONER CONSTANTINE: Yeah, well, you --
CHAIRWOMAN MAC'KIE: And I also get to talk if I want to.
COMMISSIONER CONSTANTINE: I know, you do it all the time.
CHAIRWOMAN MAC'KIE: And I'm going to do it more. The more you
complain about it, the more I'll do it.
Are there -- Mr. Weigel?
MR. WEIGEL: Okay. I'll just say that I -- possibly anticipating
the motion, since the executive summary provided by the Sheriff
indicates the recommendation that the board agree to resolve the
pending budget appeal, mechanically I would suggest that the board
agree and authorize the chairman, if they go in this direction toward
the resolve, we're not merely taking care of the reserve fund issue,
but it's the whole appeal, which has two issues, and that the chairman
co-write a letter with the Sheriff to submit to the appropriate state
reviewing agency here that the appeal has been settled locally and
that it was withdrawn. I would ask Mr. Saunders to comment.
MR. SAUNDERS: And we are prepared to do that. That was the
anticipation, that we would either write a joint letter or communicate
in the appropriate way to dismiss the appeal, assuming that the issue
is resolved.
CHAIRWOMAN MAC'KIE: Mr. Fernandez?
MR. FERNANDEZ: Madam Chairwoman, since you didn't like my
suggestion of carving out a reserve from within the current dollar
amount of the sheriff's budget, it may help you to like it a little
more if I asked Mr. Smykowski to let you know what the millage
implication is, granting the amount requested by the Sheriff.
CHAIRWOMAN MAC'KIE: For the coming year is what you're telling
MR. FERNANDEZ: It's for the current year.
CHAIRWOMAN MAC'KIE: We've already collected this money. This
three million we've already taxed and collected.
MR. FERNANDEZ: No.
CHAIRWOMAN MAC'KIE: Well, of course we have; otherwise, it's not
in the reserve account.
MR. SAUNDERS: I certainly hope you've taxed it and collected it
for 1998.
CHAIRWOMAN MAC'KIE: We better have.
MR. SMYKOWSKI: For the record, Michael Smykowski, budget
director.
The money was taxed and collected, but it is currently in a
reserve and not forecast to be spent, so it accrues as part of your
fund balance and would therefore be available to fund next year's
budget in part.
If he -- if the Sheriff spent 2,982,100 of this reserve, if you
made that motion and that agreement and he spent that full amount,
next year you would have to levy 2,982,100 in taxes plus a five
percent revenue reserve. You would levy an additional 3.1 million
dollars. The budget proposed by the county administrator for the
general fund millage is at 3.5495 mills. If that money were spent in
the forecast, it would -- the millage impact would be 3.6785 mills.
So instead of a 15 cent decrease per $100,000 of taxable value for
general fund taxes, it would be an increase of $12.90.
COMMISSIONER CONSTANTINE: Did we have any document anywhere up
here recognizing an excess amount of 2.9 million as a reserve since
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June 16, 1999
the budget was approved last year? Because my concern is that -- I
understand what you're suggesting. But it seems to me we get a
published final budget after the fact and that that budget lines out
an amount that was set aside in reserve. And for us to go back after
the fact and pretend that we didn't do that, I think, would be a
losing battle.
And I don't dislike the suggestion, if I thought it had any
merit, but I'm just afraid if all it does is set up another legal
battle, which if we have documented that somewhere in our budget, is
going to be a loser.
MR. SMYKOWSKI: I'm not suggesting a legal battle. I'm just
saying if you give him that reserve and he chose --
COMMISSIONER CONSTANTINE: I understand.
MR. SMYKOWSKI: -- to spend --
CHAIRWOMAN MAC'KIE: Two separate issues.
COMMISSIONER CONSTANTINE: I'm asking you a very specific
q~estion. Did that appear somewhere? Did that amount appear
somewhere as the amount for the Sheriff's reserve?
MR. SMYKOWSKI: The 2.9, no. It is included in the general fund
reserve for a contingency amount. There is a single line item which
is inclusive of board funds and all constitutional officers.
CHAIRWOMAN MAC'KIE: So how does that 2.9 something down to 100
bucks come to be identified as the Sheriff's reserve?
COMMISSIONER CONSTANTINE: You're identifying it I think as five
percent of their overall budget, and that's --
CHAIRWOMAN MAC'KIE: I thought it was a line somewhere, too.
COMMISSIONER CONSTANTINE: But at no point it ever appears as a
budget anywhere. I mean --
MR. FERNANDEZ: No, it doesn't appear distinctly in our budget.
We have indicated that it is part of the general fund reserve.
CHAIRWOMAN MAC'KIE: As a policy it exists, but not as a line
item.
MR. FERNANDEZ: Correct.
COMMISSIONER CARTER: When we make this change, it will show up
as a line item area in the Sheriff's budget.
COMMISSIONER CONSTANTINE: In future years.
MR. FERNANDEZ: If in fact the board does this.
CHAIRWOMAN MAC'KIE: In which -- I can't think I got those
numbers right. You're telling us that if we do this, instead of a 15
cent per $100 tax reduction, if we adopted Bob's budget today, which
of course we won't --
COMMISSIONER NORRIS: We might.
CHAIRWOMAN MAC'KIE: But -- and the net effect would be a $13 per
100 increase? This three million bucks --
MR. SMYKOWSKI: Tenth of a mill. 12.129 mills.
CHAIRWOMAN MAC'KIE: This three million bucks will cost 13 bucks
for every $100,000 home.
MR. SMYKOWSKI: Yes. The total taxable value in the county is
just slightly above 24 billion dollars. One-eighth of that would be
1.25 mills. That's slightly above that, so yes.
COMMISSIONER CARTER: Unless the Sheriff reduced his budget by
three million dollars next year.
MR. SMYKOWSKI: The issue is whether or not the money will be
spent --
MR. FERNANDEZ: That's what I'm suggesting.
MR. SMYKOWSKI: Obviously that is based on the assumption that if
Page 12
June 16, 1999
granted that reserve, he spends every last dime of it.
COMMISSIONER CONSTANTINE: Can you assure me with absolute
certainty, Mr. Fernandez, that that didn't appear anywhere in our
budget, our budget documents or the books we've --
MR. FERNANDEZ: That dollar amount?
COMMISSIONER CONSTANTINE: -- put together?
MR. FERNANDEZ: $2,982,1007
COMMISSIONER CONSTANTINE: That there was a specific line item
anywhere --
MR. FERNANDEZ: Yes, sir, I can assure you that.
CHAIRWOMAN MAC'KIE: If you were going to -- it's bad lawyering,
and I apologize, Mr. Weigel, but if you were going to make the very
best case for their side, what is the best argument they have that
that is a real fixed amount?
COMMISSIONER CONSTANTINE: Boy, don't make their argument for
them.
CHAIRWOMAN MAC'KIE: What would that be?
COMMISSIONER BERRY: I don't want to hear that.
CHAIRWOMAN MAC'KIE: All right.
MR. SAUNDERS: I'd like to hear it.
CHAIRWOMAN MAC'KIE: I'd like to know --
COMMISSIONER BERRY: I bet you would.
CHAIRWOMAN MAC'KIE: I'd like to know, because otherwise how can
we balance the risk that we're taking? How do we know how much risk
we're taking unless we --
MR. SAUNDERS: We're relying on two documents. We're relying on
your policy that says five percent. And the fact that you
appropriated the five percent. I mean, it's in your budget, it's
appropriated, your policy says it for the constitutional officers.
It's merely a mathematical computation, five percent times the
operating budget gives you that number. And it's there. It's -- the
record is replete with that.
The other thing we're relying on is the state statute, that I
think everyone at this point has agreed is pretty clear.
So the thing that really troubles me as a taxpayer, as I listen
to Mr. Smykowski talk about these reserves, you're assuming for this
purpose that the Sheriff's going to spend that 2.9 million dollars,
which I don't think is a valid assumption. But number two, you're
assuming that there's not going to be any emergencies resulting in the
need to spend money out of contingencies for the county as we approach
hurricane season.
And if you're budgeting in June, assuming you're going to have
all those reserves left over at the end of the year, there's not going
to be a hurricane in 1999, then I think this sort of reminds me of a
phrase of voodoo economics a long time ago, you're -- I think you're
making a mistake.
I say that as a taxpayer, not as a representative of the
Sheriff's Department.
We're relying on the statute, we're relying on the board policy
and the fact that no one in this room contests the question of the
fact that 2.9 plus million dollars in reserves is residing in the
county fund for the operation of the Sheriff.
CHAIRWOMAN MAC'KIE: Let me ask another question. If the board
were to vote that you're right on the legal question but your reserve
amount is hereby reduced to $900,000, would that eliminate the appeal?
MR. SAIrNDERS: Most definitely not.
Page 13
June 16, 1999
CHAIRWOMAN MAC'KIE: Okay.
COMMISSIONER NORRIS: See, told you.
MR. SAUNDERS: We can't. We would be agreeing to violate the
state law, and we're not going to do that.
COMMISSIONER CONSTANTINE: Senator Saunders, like I say, I -- you
know as well as anybody in this room how the budget process for the
county works.
So to suggest that you're amazed that we would even consider
contingencies for maybe there's a hurricane and so on, you know how
the budget process works, and we plug all that in, and if we have to
spend it, that's why there's a final budget hearing in September. I
mean, there's carryover amounts. You know that.
So that's not voodoo economics, that's just the way it works when
you have a 450 million dollar budget and a big chunk of that is set
aside for reserve.
MR. SAUNDERS: I know. But I have read the headlines of a tax --
you know, very small tax increase or a slight rollback. And it sounds
like, you know, the assumption is that you're not going to be spending
any of your reserves, and that's --
COMMISSIONER CONSTANTINE: I think the key word in that headline
was proposed. It was administrator's proposed budget. And that's all
it is right now is the proposed budget. We haven't even had one
public hearing on it.
MR. FERNANDEZ: Madam Chairwoman?
COMMISSIONER CONSTANTINE: My question -- my follow-up question
before to you was if you can assure it doesn't appear there, what
would be -- what in your mind was the amount that was set aside in
reserve if we were strictly on your interpretation? If it wasn't
2.982 million, how much was set aside?
MR. FERNANDEZ: There wasn't a specific amount set aside. We
have a general fund reserve and the general fund reserve is designed
to meet all the reserve requirements of the general fund funded
activities. And it's --
COMMISSIONER CONSTANTINE: Does that mean then the Sheriff could
request and get five million, 10 million, whatever? I mean, if there
isn't a number, does that mean he can just -- because then if that's
the case, it becomes we're just grabbing at straws here. The end
result's the same.
MR. FERNANDEZ: Yes, my understanding and the way we've budgeted
for reserves is that the general fund reserve is a general reserve
that's available to all of the entities that are funded through th~
general fund. And we don't set aside allocations of that reserve for
different portions of the general fund.
COMMISSIONER CONSTANTINE: And I'll tell you the unfortunate part
of all this is exactly the scenario Commissioner Berry described. If
you remember October 10th of last year, and I remember the date
specifically, we got a memorandum from the Sheriff saying he thought
he would probably have to dig into the reserves.
And I remember being very frustrated at the time saying we're 10
days into the budget year, we have 355 left, and it did appear at that
time that it was an item that well, we didn't get all the funding so
we're going to use it that way. So I had that concern.
One thing Senator Saunders said was he didn't anticipate that
they would request the whole amount. And I see Crystal Kinzel there,
she's the budget director. I'm sure she has some idea where they
stand monetarily.
Page 14
June 16, 1999
Do you have any idea what it is? I mean, we could be having this
argument for naught if you think boy, we need another --
MS. KINZEL: I can assure you we're probably not going to use the
entire 2.9 in the next four months. I think it's an issue of process
and accessibility for the end of the year.
COMMISSIONER CONSTANTINE: Do you have any ballpark figure of
what --
MS. KINZEL: We had projected in our forecast to the budget
document that we probably would come in at about a million two, if the
salaries held true at the point of May 1 submission of the budget.
That's where we were at that point. We're in the process right now of
reassessing that as we get closer to the workshop Friday. So we'll
have that for you.
COMMISSIONER CONSTANTINE: And why I ask that, I guess, is we go
all the way back to my point before is you're right, it is a question
of process. There's a state statute that allows them to do that. We
did set aside some amount for reserve last year. And I may not be
particularly happy over whatever that three million is. Sounds like
that's not what they're going to ask anyway. And ultimately, the same
as us, they're responsible to the public if they choose to do that.
And could it add some implication on the tax picture? Yes.
COMMISSIONER CARTER: Following that analysis, Commissioner, it
would seem to me that if we set aside 2,982,000 to look at a million
two, when it's all said and done there should be 1,782,000 sitting in
that reserve if everybody is doing what they say they're going to do.
CHAIRWOMAN MAC,KIE: Commissioner Norris?
COMMISSIONER NORRIS: Well, I find it very interesting that this
is all about process, since the process that we use has been in use
for 75 years, and all of a sudden when we have a first Sheriff's
budget appeal and live in memory, we get down to saying it's not the
money, it's the process. Baloney, it's the money.
COMMISSIONER BERRY: There's no other way to get around it. You
can't tell me that if it was for $50,000 that this would be a big
issue. That's not the case. I'm sorry.
MR. SAUNDERS: Just for the record, and I know this is not a
major issue at this point, but there is correspondence from the county
in response to the appeal and to the Governor and Cabinet -- or to the
Governor's staff outlining -- as a matter of fact, the chairman signed
some of those letters -- outlining the amount of reserves, and the
document talks about the 2.9821 million dollars in reserves for
contingency for the Sheriff. So it's all over your record, if that's
of any help.
COMMISSIONER NORRIS: We're not disputing that.
CHAIRWOMAN MAC'KIE: I think some of us were.
MR. SAUNDERS: But Madam Chairman and members of the commission
MR. FERNANDEZ: May I interrupt a moment? The question was, does
it appear in our budget document? I said no, it does not appear in
our budget document. And that number, $2,982,100 does not appear in
our budget document. Mr. Smykowski, is that correct?
COMMISSIONER CONSTANTINE: The question was is it documented
anywhere in our budget materials or others? It doesn't matter at this
point. The answer is it may not be in our budget document. It is
documented. I'd love to make a motion.
CHAIRWOMAN MAC'KIE: I was hoping you would. I was just going to
ask you to.
Page 15
June 16, 1999
COMMISSIONER CONSTANTINE: I'm going to make a motion that we
recognize state statute does allow the Sheriff access unfettered -- I
love that word -- access to the reserve accounts. There was something
you wanted to make sure we've thrown in there. I've forgotten what it
was .
MR. SAUNDERS: Just that -- I think you've pretty well covered
it. The Sheriff will notify the county in terms --
COMMISSIONER CONSTANTINE: That's also required by state statute.
We heard somebody nodding anyway from the clerk's office that they
were in agreement with this.
As part of this, it's assumed that the -- and you've stipulated
on the record that the appeal in its entirety, including the question
over the other $250,000 goes away.
MR. SAUNDERS: That is correct. And we'll draft an appropriate
document for review by the County Attorney's Office and the County
Commission office.
COMMISSIONER NORRIS: Does your motion entail at all setting a
specific amount that is hereby contained in the Sheriff's reserve?
CHAIRWOMAN MAC'KIE: Before you answer, can I let -- Bob has
something he needs to get in there.
MR. FERNANDEZ: I'd just like to discuss the motion once we're at
that point.
CHAIRWOMAN MAC'KIE: I'm sorry. Go ahead.
COMMISSIONER CONSTANTINE: Not for right now, no. And then we
may address that under separate motion, but I think again, it's a
question of how does the statute read.
MR. SAUNDERS: Okay, we're assuming --
COMMISSIONER CONSTANTINE: We can ignore the statute and continue
in the appeal process, or we can recognize the statute. Separate from
that, we can have our question of how much was set aside or how much
we're going to set aside in future years, but those are separate
questions.
MR. SAUNDERS: In terms of the motion, I'm not concerned about
future years. What you do with your reserves for future years is a
different argument altogether. But in terms of 1998-1999, five
percent of the Sheriff's operating budget or just over 2.9 million
dollars has been set aside as reserves. That's been the anticipation
of the Sheriff.
So there may not be an amount specified in this motion. But in
our agreement to dismiss the appeal, that's the assumption that we've
made, that there are five percent reserves set aside for the Sheriff
and that amount is approximately 2.9 million dollars.
CHAIRWOMAN MAC'KIE: Is your agreement to dismiss the appeal
contingent on that five percent amount? MR. SAUNDERS: That is correct.
COMMISSIONER NORRIS: I told you, it ain't the process, it's the
money.
COMMISSIONER CONSTANTINE: I guess the -- it would seem to me
that would be a separate -- a distinctly different question. Because
the appeal you have filed with the Governor and Cabinet is one as to
how state statute reads and whether or not you have access.
MR. SAUNDERS: Let me review the state statute again. Because we
are talking about the interpretation of the state statute. And the
state statute says that there shall be set aside an amount for the
Sheriff's reserves that is equal to what the county sets aside for its
other departments. That happens to be five percent for 1998. And
Page 16
June 16, 1999
that's why that number is important.
COMMISSIONER CONSTANTINE: I think there's some dispute --
MR. SAUNDERS: We don't want the Sheriff --
COMMISSIONER CONSTANTINE: -- I think there's some dispute as to
whether or not that's how it reads.
And secondly, I think because it's been documented, I'm going to
have a hard time pretending the number was something else. Because we
do have some documentation in this specific case that references that
number. I would love to make it something different. I don't think
we realistically can do that.
But, you know, we -- again, my point was just that sounds like it
would be a separate question, if we went and did alter that amount or
did recognize a different amount than has been suggested. That's not
the same issue as to whether or not you had access to it. And so you
might file a whole different appeal, but it sounds like the process
might start over there.
MR. SAUNDERS: Well, I think that we have to combine this. We're
either going to dismiss the appeal with the understanding --
COMMISSIONER CONSTANTINE: I sure hope we do.
MR. SAUNDERS: -- that there's unfettered access and the amount
is five percent, or we're going to have to proceed with the appeal.
And our assumption from all along has been that it's -- really the
access question is what was driving today's meeting. Not so much the
amount. The anticipation has always been that the amount would remain
the same.
COMMISSIONER CONSTANTINE: A couple of --
MR. SAUNDERS: If that's going to be cut, then we need to go
ahead and consider that as part of this motion. Because we can't
agree to dismiss this appeal and have unfettered access, and then
tomorrow morning pick up the newspaper and find out that during your
budget hearings you've decided that the 1998 amount of reserves for
the Sheriff's Department is zero. You have unfettered access to that
zero fund.
CHAIRWOMAN MAC'KIE: I'm going to offer to second the motion if
you will amend it to include the acknowledgement that for last year
the budgeted reserve amount was five percent.
COMMISSIONER NORRIS: For last year. You mean this year.
CHAIRWOMAN MAC'KIE: For the current fiscal year.
MR. SAUNDERS: Yeah, 98-99.
CHAIRWOMAN MAC'KIE: The subject year.
I'll second it.
COMMISSIONER CONSTANTINE: I'll tell you what, I couldn't even
repeat my own motion at this point after all that debate, so I'm just
going to withdraw it.
CHAIRWOMAN MAC'KIE: Okay. Then I'll make a motion that we
jointly dismiss the Sheriff's budget appeal on the condition that the
County Commission acknowledge that the 1998-99 amount of Sheriff's
contingency reserve is five percent, whatever that math turns out to
be, two million nine and change; and that we acknowledge that we are
dismissing -- jointly dismissing the budget appeal because our
interpretation of the statute is that the Sheriff has unfettered
access to his reserves.
COMMISSIONER NORRIS: And may I make one more comment before we
get ready to vote?
CHAIRWOMAN MAC'KIE: And I ain't got a second yet, so --
COMMISSIONER NORRIS: Okay. Before you even get a second, just
Page 17
June 16, 1999
let me make a comment.
We went through this this time last year. And as we have for
every year, a very rancorous debate with the Sheriff over his budget.
It is the duty and responsibility of the County Commission to set the
dollar amount for the operating budget.
Obviously the Sheriff was not happy with that last year, hadn't
been happy for several years, even though his budget has grown faster
than any other county budget by a great margin. He still wasn't happy
with it. And all this is is a way to go around the County Commission
and to get extra dollars for his operating fund for this fiscal year.
End of story. Go ahead and vote.
CHAIRWOMAN MAC'KIE: To which he will have to answer to his
electorate. You know --
COMMISSIONER NORRIS: It doesn't, though, because it shows up in
our millage. That's been the problem all along.
COMMISSIONER BERRY: That's the problem.
COMMISSIONER CONSTANTINE: Let me just make one --
COMMISSIONER BERRY: If it was a line item, it would be a
different situation on the tax bill.
COMMISSIONER CONSTANTINE: Let me make one point that -- it won't
help us much this year, but as we look to set policy for next year's
budget, as we have the budget hearings, if we choose to -- that amount
talked about by Mr. Smykowski assumes that we have to replace all that
money.
CHAIRWOMAN MAC'KIE: Right.
COMMISSIONER CONSTANTINE: And if we set a different policy, if
we don't have the full five percent, we don't need to replace all
that, and you don't have that millage increase. You would have some
millage increase, but you wouldn't necessarily have that full amount
millage increase.
So there's a way for us to address this. I think the issue boils
down to do we recognize state statute or don't we? I hate the money
side of it. I think a majority of us aren't happy with the money side
of it. We had questions during the budget thing.
COMMISSIONER NORRIS: Is our legal staff telling us that we
should not continue with this appeal, that we don't have a solid
foundation to go along with this appeal?
MR. WEIGEL: No, I didn't say that. The kind of question I'm
asked is what are our chances on appeal, and I state that the statute
I think has some ambiguity or non sequitur to it. And therefore, I
cannot say with certainty that the county would prevail in its
position on appeal.
The interpretation that I give to the statute, 30.49 in the
sections that we look at, which are sub-sections -- specifically 2, 6,
7, 8, 9 and 10, is that in subsection six it says the board shall
include the reserve for contingencies provided herein for each budget
of the Sheriff in the reserve for contingencies in the budget of the
appropriate county fund. And I would -- typically statutory
construction by the courts is, is that every word is supposed to be
there for a purpose and have the regular meaning that you would accord
to it.
I would have thought the legislators would have said the reserve
for contingencies in the budget of the Sheriff. And it says in the
appropriate county fund, which I interpret to say gives some
discretion to the county as to which fund they put it in.
CHAIRWOMAN MAC'KIE: Can I ask you, just in summary, what you're
Page 18
June 16, 1999
saying is that we have an arguable position legally and you
acknowledge the Sheriff has an arguable position legally. MR. WEIGEL: That's true.
CHAIRWOMAN MAC'KIE: You would advocate ours strongly if we go
forward on the appeal, and tell us that we have a fair to even chance
of winning. Is that accurate?
MR. WEIGEL: It's always so difficult to, you know, prognosticate
or give odds. I'd say it's no better, no worse than 50/50.
COMMISSIONER NORRIS: Has this case -- there is no case law on
this particular issue?
MR. WEIGEL: No. Not particularly, no.
CHAIRWOMAN MAC'KIE: So there is --
COMMISSIONER CARTER: Let me ask another question --
CHAIRWOMAN MAC'KIE: -- a motion, and I'm scared the farther I
get away from it, you all are going to ask me to repeat the motion,
and so I hope --
MR. WEIGEL: We have a court reporter that can read it back.
COMMISSIONER CARTER: Let me ask another question.
CHAIRWOMAN MAC'KIE: I can't get a second.
COMMISSIONER CARTER: Isn't it possible to leave it where it is
where the Sheriff has access to it without going over to his side? It
still stays in the general fund, he has access to it and doesn't have
to come to us for permission to use it?
MR. SAUNDERS: That's what we're doing.
CHAIRWOMAN MAC'KIE: That is my proposal.
MR. SAUNDERS: That's the motion.
COMMISSIONER CONSTANTINE: That was my --
COMMISSIONER CARTER: Okay, so it stays where it is.
CHAIRWOMAN MAC,KIE: Stays where it is, he notifies us when he
accesses it.
COMMISSIONER CONSTANTINE: The motion unfortunately also goes a
step further than that. But that was the intent of my motion --
CHAIRWOMAN MAC'KIE: That's correct.
COMMISSIONER CONSTANTINE: -- originally, which you just added a
part to it.
CHAIRWOMAN MAC'KIE: And I added the part about where we
acknowledge that for 98-99 the amount of the budget contingency for
reserves is five percent.
Any chance that we're going to get a second?
COMMISSIONER CARTER: I'll second it so we continue the
discussion. Mr. Fernandez has a point. CHAIRWOMAN MAC'KIE: Yes, sir?
MR. FERNANDEZ: That's the point I was going to make. While
we're being careful about being consistent with the statute,
subsection seven of that same section of the statute, 30°49, says in
its final line there that the Sheriff shall be appropriated upon
written request of the Sheriff. It does say that. And what -- the
concept we're talking about here is not consistent with that language.
CHAIRWOMAN MAC'KIE: It shall be appropriated upon written
request. So if you want my -- to be very specific and careful about
the details, then my motion should say instead of saying that he will
notify us of his decision to expend those funds, my motion should say
that the County Commission shall appropriate funds upon the written
request of the Sheriff.
MR. SAUNDERS: Now, just again being overly --
CHAIRWOMAN MAC'KIE: Yeah, you probably should be.
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June 16, 1999
MR. SAUNDERS: -- cautious, I want to make sure that what we're
saying is that whether you use the word notification or you use the
word request, you still have the phrase in there that the board shall
appropriate it. So those dollars have already been appropriated. The
clerk is willing to write those checks without this coming back to the
board for approval. And that's --
CHAIRWOMAN MAC'KIE: It is the intent of my motion that the board
will only receive a copy of a notice of a letter that says I have
hereby -- this is to formalize my request of these funds and it will
go to the clerk and that will be the method by which the check is cut.
COMMISSIONER CONSTANTINE: And that's what I had said at 407, you
know, written report so that there is the record. Okay.
COMMISSIONER CARTER: Okay, I'm with that.
MR. FERNANDEZ: Madam Chairwoman?
CHAIRWOMAN MAC'KIE: Yes.
MR. FERNANDEZ: If I may, I'd just like to make one last
argument, and that is the language I just read, taken together with
the language that Mr. Weigel read, can be interpreted to say that if
we chose to put this reserve in the fund of the Sheriff, it shall be
available upon the written request of the Sheriff.
Alternatively, if we chose to put this reserve in the general
fund using the appropriate fund language from subsection six, the
rules of appropriation of the general funds reserve shall apply.
That's an interpretation that can --
COMMISSIONER BERRY: That would -- would that require an
amendment? Some kind of budget amendment?
MR. FERNANDEZ: As we do -- yes, as we do every other reserve
request.
COMMISSIONER BERRY: So what are you going to do then?
MR. SAUNDERS: I have no idea what the administrator just said.
COMMISSIONER BERRY: He said that if it stays in the general
fund, then it's going to have to be a budget amendment. And it says
in the statutes we can put it in any fund we want to.
MR. SAUNDERS: The clerk --
COMMISSIONER NORRIS: It's in the general fund.
COMMISSIONER BERRY: It's in the general fund.
MR. SAUNDERS: The clerk has indicated that these dollars have
already been appropriated. They're residing in the general fund. The
clerk will write the check upon notice from the Sheriff that the
Sheriff seeks to use those dollars. The motion simply says that as a
matter of policy the board agrees that that's what the law says, that
the clerk can write those checks. Whether we're talking about budget
amendments later on down the road, I have no idea how that plays with
this.
Those dollars have already been appropriated, they're residing
there, they're available, and we want the commission to go on record,
and the motion does that, saying they are available for use by the
Sheriff.
CHAIRWOMAN MAC'KIE: And if --
MR. SAUNDERS: And that's what I believe the state statute says.
You know, I -- I guess if you read it often enough and have some
convoluted thinking, you can change it a little bit, but that's what
it says.
CHAIRWOMAN MAC'KIE: Well, the intent of my motion does not
contemplate that budget amendments would be necessary. My motion
contemplates that we would receive notice of the request to the clerk
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June 16, 1999
that the appropriated funds have been -- the check's been cut,
whatever.
COMMISSIONER NORRIS: Our staff has raised some question whether
that may be legal or not.
CHAIRWOMAN MAC'KIE: Is that legal?
MR. FERNANDEZ: Madam Chairman, what I'm arguing is that if the
board's intent is to allow the Sheriff access to those funds upon his
request, then the reserve must be budgeted within the budget of the
Sheriff. If you budget it as a reserve within the general fund, then
the rules of appropriation of the general fund reserve apply.
CHAIRWOMAN MAC'KIE: Okay. So I hope the clerk is -- the deputy
clerk is standing up, or the attorney for the clerk is standing up.
MR. PIRES: If I may, Madam Chairman, Tony Pires, for the record,
Woodward, Pires, Lombardo. I spoke with Mr. --
COMMISSIONER CONSTANTINE: Representing who? Because your
partner is here representing the Sheriff. So are you representing the
Sheriff or the clerk?
MR. PIRES: Yes, I'm working with Mr. Saunders representing the
Sheriff, but I --
CHAIRWOMAN MAC'KIE: I want to hear from the clerk.
COMMISSIONER CONSTANTINE: Is there somebody from the clerk --
MR. PIRES: But I spoke with Mr. Mitchell --
COMMISSIONER CONSTANTINE: Correct, but you're representing the
Sheriff. I'd really love to hear from somebody from the clerk who's
not biased in this case.
CHAIRWOMAN MAC'KIE: It's important. I agree.
MR. CROSS: I'm Jay Cross, the executive assistant to the clerk.
My understanding of this from Mr. Mitchell through Mr. Pires is
it's already been appropriated.
COMMISSIONER BERRY: That's not the question.
MR. CROSS: It has been appropriated. It's in the budget.
CHAIRWOMAN MAC'KIE: Will you require a budget amendment if you
get a letter from the Sheriff saying please give me 1.2 million
dollars of this fund? Will you require that the process include a
budget amendment through this board, or will you write the check upon
receipt of the letter?
MR. CROSS: My understanding at this point, Madam Chairman, is
that we would write the check.
COMMISSIONER CONSTANTINE: And your under -- what I heard you say
was your understanding from Mr. Mitchell through Tony -- MR. CROSS: Right.
COMMISSIONER CONSTANTINE: -- who is representing the Sheriff --
MR. CROSS: I have not had a chance to talk with Mr. Mitchell
personally regarding this. We did confer via Mr. Pires -- where did
he go?
CHAIRWOMAN MAC,KIE: He's there.
MR. CROSS: -- a moment before coming in. Jim could not be here
this afternoon, so I got pulled in.
COMMISSIONER CONSTANTINE: I don't question either one of you.
But I don't think that's probably a good way for information to be
given to us is through someone representing one side or the other.
MR. CROSS: In that case -- in that case, Commissioner, I could
not answer your question at this point.
CHAIRWOMAN MAC'KIE: If the clerk objects to the -- to writing
the check upon receipt of the request, the letter from the Sheriff,
then the worst thing that happens is that on the consent agenda comes
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June 16, 1999
that the appropriated funds have been -- the check's been cut,
whatever.
COMMISSIONER NORRIS: Our staff has raised some question whether
that may be legal or not.
CHAIRWOMAN MAC'KIE: Is that legal?
MR. FERNANDEZ: Madam Chairman, what I'm arguing is that if the
board's intent is to allow the Sheriff access to those funds upon his
request, then the reserve must be budgeted within the budget of the
Sheriff. If you budget it as a reserve within the general fund, then
the rules of appropriation of the general fund reserve apply.
CHAIRWOMAN MAC'KIE: Okay. So I hope the clerk is -- the deputy
clerk is standing up, or the attorney for the clerk is standing up.
MR. PIRES: If I may, Madam Chairman, Tony Pires, for the record,
Woodward, Pires, Lombardo. I spoke with Mr. --
COMMISSIONER CONSTANTINE: Representing who? Because your
partner is here representing the Sheriff. So are you representing the
Sheriff or the clerk?
MR. PIRES: Yes, I'm working with Mr. Saunders representing the
Sheriff, but I --
CHAIRWOMAN MAC'KIE: I want to hear from the clerk.
COMMISSIONER CONSTANTINE: Is there somebody from the clerk --
MR. PIRES: But I spoke with Mr. Mitchell --
COMMISSIONER CONSTANTINE: Correct, but you're representing the
Sheriff. I'd really love to hear from somebody from the clerk who's
not biased in this case.
CHAIRWOMAN MAC'KIE: It's important. I agree.
MR. CROSS: I'm Jay Cross, the executive assistant to the clerk.
My understanding of this from Mr. Mitchell through Mr. Pires is
it's already been appropriated.
COMMISSIONER BERRY: That's not the question.
MR. CROSS: It has been appropriated. It's in the budget.
CHAIRWOMAN MAC'KIE: Will you require a budget amendment if you
get a letter from the Sheriff saying please give me 1.2 million
dollars of this fund? Will you require that the process include a
budget amendment through this board, or will you write the check upon
receipt of the letter?
MR. CROSS: My understanding at this point, Madam Chairman, is
that we would write the check.
COMMISSIONER CONSTANTINE: And your under -- what I heard you say
was your understanding from Mr. Mitchell through Tony -- MR. CROSS: Right.
COMMISSIONER CONSTANTINE: -- who is representing the Sheriff --
MR. CROSS: I have not had a chance to talk with Mr. Mitchell
personally regarding this. We did confer via Mr. Pires -- where did
he go?
CHAIRWOMAN MAC,KIE: He's there.
MR. CROSS: -- a moment before coming in. Jim could not be here
this afternoon, so I got pulled in.
COMMISSIONER CONSTANTINE: I don't question either one of you.
But I don't think that's probably a good way for information to be
given to us is through someone representing one side or the other.
MR. CROSS: In that case -- in that case, Commissioner, I could
not answer your question at this point.
CHAIRWOMAN MAC'KIE: If the clerk objects to the -- to writing
the check upon receipt of the request, the letter from the Sheriff,
then the worst thing that happens is that on the consent agenda comes
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June 16, 1999
attached issues that we don't have all the answers to. And if we can
get all those in the next 30 seconds from a phone call from the clerk,
great. I don't know that's going to be the case. It's not simply the
access to the general fund issue, but --
CHAIRWOMAN MAC'KIE: Because we have another meeting in two
minutes.
COMMISSIONER BERRY: I want to make a comment here --
CHAIRWOMAN MAC'KIE: Hang on, and then let's hear from
Commissioner Berry.
COMMISSIONER BERRY: I just -- this is just a general comment,
and it probably has nothing to do with anything other than perception.
As you well know, we all fall under perception.
But I have to say, Senator Saunders, I find this most irregular
that we'd have a state -- it's like feel no pressure. We have a state
senator representing an elected -- a constitutional officer in front
of --
COMMISSIONER NORRIS: Against.
COMMISSIONER BERRY: -- an elected -- against an elected Board of
County Commissioners. And if you think that doesn't put you in a
difficult situation, it certainly does. Because I certainly respect
your office as a state senator. And I find this very, very difficult
to deal with, this whole situation. Just perception.
MR. CROSS: May I answer your question?
CHAIRWOMAN MAC'KIE: Yes, please.
MR. CROSS: The process by which you would move this from
reserves into the Sheriff's budget is the same process you would use
at any time which would require a budget amendment. There's no
difference. And what I said -- what I tried to say before was we
follow the same process, regardless. CHAIRWOMAN MAC'KIE: Okay.
COMMISSIONER CONSTANTINE: I see Crystal, I see Burr both
shrugging their shoulders. If that's the case, I'm fine with this.
CHAIRWOMAN MAC'KIE: Then I'm going to call the question.
All in favor of the motion on the floor, please say aye. Aye.
COMMISSIONER CARTER: Aye.
CHAIRWOMAN MAC'KIE: Opposed?
COMMISSIONER NORRIS: Aye.
COMMISSIONER CONSTANTINE: Aye.
COMMISSIONER BERRY: Aye.
COMMISSIONER CONSTANTINE: And my reason is that you've tied up
that extra part in there. If we could make the motion be as simple as
approve the settlement of the appeal with the Sheriff's budget,
recognizing the state statute, recognizing there's some written
notification to the board, recognizing that in future years we set
aside whatever amount is appropriate, and that's set by local policy,
that's not set necessarily by state statute.
I want the approval of the motion to be contingent upon Sheriff's
Department dropping the appeal as well, and upon some commitment of
recognition. Crystal had said you couldn't envision, barring future
emergency from this point forward to the end of the budget year, but
you didn't -- you couldn't imagine a scenario under which the request
would be in excess of 1.2 million. If you'd just say that on the
record so we're clear.
And I realize there could be some other emergency between now and
then. But anything that isn't -- hasn't already occurred or hasn't
already happened, if you can make that commitment, then --
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June 16, 1999
CHAIRWOMAN MAC'KIE: Then you could make another motion?
COMMISSIONER CONSTANTINE: -- I'll make that in the form of a
motion.
MR. SAUNDERS: Now, again, the issue is --
COMMISSIONER CONSTANTINE: I'm just asking -- I appreciate you're
here as an advocate. I'm asking a representative of the Sheriff's
Office to make that commitment.
MR. SAUNDERS: She's going to turn around and ask me if that's an
acceptable motion.
COMMISSIONER CONSTANTINE: That's great. Then go talk to her.
MR. SAUNDERS: That's fine.
COMMISSIONER CONSTANTINE: I don't want to continue to debate
this with you from the podium.
MS. KINZEL: Commissioner, with the qualification that we don't
know what will happen between now and September, that is what we
forecast and projected in the budget document as of May. That was our
projection at that time. So I don't expect that we'll exceed that.
But I do want that -- the obvious -- because we are in hurricane
season, so I don't want to go past that. Okay?
MR. SAUNDERS: As the attorney for the Sheriff, I just want to
make sure I understand fully the motion now. In terms of dismissing
the appeal, which we are prepared to do, we would not -- the board
would not come back tomorrow or next week or three weeks from now and
say okay, we decided that the reserves for 1998-1999 are 1.2 million
dollars as opposed to five cents.
COMMISSIONER CONSTANTINE: Correct.
MR. SAUNDERS: And that's why I keep coming back to that.
COMMISSIONER CONSTANTINE: Correct.
MR. SAUNDERS: If that's the understanding of the board, then
we're fine.
CHAIRWOMAN MAC'KIE: What we're having on the record is --
COMMISSIONER CONSTANTINE: Don't even say it.
CHAIRWOMAN MAC'KIE: -- a commitment from the Sheriff's Office
that we hope --
COMMISSIONER CONSTANTINE: The un-commitment.
CHAIRWOMAN MAC'KIE: Is there a motion?
COMMISSIONER CONSTANTINE: That was the motion. I'm sorry.
COMMISSIONER CARTER: We're not changing our position on the
reserves as budgeted for this fiscal year, but we have the right in
future years.
COMMISSIONER CONSTANTINE: If future boards or this board in
future years adopts a different policy, that's fine.
CHAIRWOMAN MAC'KIE: So I'm confused about -- is this the same
motion with the understanding that Ms. Kinzel expects that 1.2 is what
they will be requesting?
COMMISSIONER CONSTANTINE: I don't know if it's the same or not.
It is what it is.
CHAIRWOMAN MAC'KIE: Well, I don't understand what it is. Give
it to me so I can know how to vote.
COMMISSIONER CARTER: Well, can we read back the motion?
COMMISSIONER CONSTANTINE: Sure, I'll read it. It's a motion to
approve the settlement of appeal on the Sheriff's budget, recognizing
state statute allows them access to monies set aside specifically for
that purpose; committing future placement of appropriate funds in the
general fund; having written documentation from the Sheriff's
Department. All of that consistent with county policy, and that
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June 16, 1999
policy, the amount and so on, may alter or the formula we use to set
aside reserves in future years may alter. And it's contingent upon
the Sheriff's Department agreeing to drop the appeal issue, as well,
all appeal issues, including the 250,000. And upon the commitment
that was made from Ms. Kinzel.
MR. SAUNDERS: And the process, it appears that there will be
required a budget amendment that would be, I would suggest would be, a
consent item. The board would automatically approve those upon
request. I believe that we've all said that, and I just wanted --
COMMISSIONER CONSTANTINE: Yeah, I don't know that we can -- you
know as well as I do we can't bind to whatever future board votes --
MR. SAUNDERS: Well, that's what -- no, we're talking about for
1998-1999.
CHAIRWOMAN MAC'KIE: Commissioner Berry?
COMMISSIONER BERRY: Am I understanding that what they're really
looking at is they want 1.2 million dollars?
CHAIRWOMAN MAC'KIE: As best they know today.
COMMISSIONER BERRY: That's the best they know today. I mean,
understanding a hurricane or some major --
CHAIRWOMAN MAC'KIE: A big crime, you know --
COMMISSIONER BERRY: Whatever.
CHAIRWOMAN MAC'KIE: -- who knows.
COMMISSIONER BERRY: Then why weren't we just -- why didn't they
bring an amendment or a request to us saying that they wanted 1.2
million dollars?
CHAIRWOMAN MAC'KIE: I think because they want an acknowledgement
that the statute gives them unfettered access, that we only have
rubber stamp approval over their reserves.
COMMISSIONER BERRY: Well, you know, that seems to me like that
ought to be settled up in the legislature and not here in Collier
County. From that standpoint, then let's go to Tallahassee and let
them figure it out.
COMMISSIONER CONSTANTINE: And my wording -- my motion at no
point said rubber stamp or any of those. That's your wording --
CHAIRWOMAN MAC'KIE: I understand.
COMMISSIONER CONSTANTINE: -- that's not what the motion said or
indicated, please.
CHAIRWOMAN MAC'KIE: I'm sorry, bad word.
COMMISSIONER CONSTANTINE: I don't know if there is a second --
CHAIRWOMAN MAC'KIE: Perfunctory approval.
COMMISSIONER CONSTANTINE: -- for the motion anyway.
COMMISSIONER NORRIS: Can we vote? Is there a second on this?
MR. SAUNDERS: Prior -- let me, if I might just take 10 seconds
CHAIRWOMAN MAC'KIE: I'll second the motion. And then go right
ahead.
MR. SAUNDERS: I want to confer with counsel for the Sheriff's
Department for just 10 seconds to make sure that --
CHAIRWOMAN MAC'KIE:. Ten seconds. Because we're late on another
meeting.
MR. SAUNDERS: -- because we're talking about settling a lawsuit
here.
CHAIRWOMAN MAC'KIE: Make it quick.
Those of you who are here for the Land Development Code hearing
that --
COMMISSIONER CARTER: Take a little break.
Page 25
June 16, 1999
CHAIRWOMAN MAC'KIE: -- started at 5:10 --
COMMISSIONER BERRY: Go have a cup of coffee.
CHAIRWOMAN MAC'KIE: -- please indulge us with just a five-minute
break before we start that, because we'll be so grouchy, we won't --
COMMISSIONER NORRIS: We're giving the public time to get here.
MR. SAUNDERS: All right, we're comfortable with the motion.
CHAIRWOMAN MAC'KIE: And I've seconded it.
All in favor, please say aye.
COMMISSIONER CONSTANTINE: Aye.
COMMISSIONER CARTER: Aye.
CHAIRWOMAN MAC'KIE: Aye.
Opposed?
COMMISSIONER BERRY: Aye.
COMMISSIONER NORRIS: Aye.
CHAIRWOMAN MAC'KIE: Motion passes three to two. We'll take a
five-minute break.
There being no further business for the good of the County, the
meeting was adjourned by order of the Chair at 5:10 p.m.
BOARD OF COUNTY COMMISSIONERS
BOARD OF ZONING APPEALS/EX
OFFICIO GOVERNING BOARD(S) OF
SPECIAL DISTRICTS UNDER ITS C NTROL
S. MAC'KIE, C
ATTEST:
,DWIGHT E. BROCK~, CLERK
Attest asI to' Chalnaaa's
$tgaeture
TheseXes approved by the Board on , , . , as
presented or as corrected
TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING
SERVICE, INC., BY CHERIE' R. LEONE, NOTARY PUBLIC
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