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BCC Minutes 01/16/2001 W (County Attorney's Office Informational Update)January 16, 2001 TRANSCRIPT OF THE WORKSHOP OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, January 16, 2001 LET IT BE REMEMBERED, that the Board of County as the Board of Zoning Appeals and as the governing board(s) of such special districts as have been created according to law and having conducted business herein, met on this date at 9:00 a.m. I in SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: James D. Carter, Ph.D. Jim Coletta Donna Fiala Tom Henning Pamela Mac'Kie ALSO PRESENT: Tom Olliff, County Manager David Weigel, County Attorney Page 1 COUNTY ATTORNEY'S OFFICE INFORMATIONAL WORKSHOP January 16, 2001 Sunshine Law 1 Public Records 2 Ethics 3 Ex Parte Communications 4 Tourist Development Tax 5 Emergency Management 6 Board Meetings / Reconsideration 7 January 16, 2001 CHAIRMAN CARTER: Call this workshop to order. It is one that's going to be presented by the county attorney. And Mr. Weigel, and Mr. Ramiro, it is all yours. Mr. Weigel is not here, so Mr. Ramiro Manalich, it is all yours. MR. MANALICH: Well, I can start with the third topic on the CHAIRMAN CARTER: The third topic on the agenda. Okay. MR. MOUNTFORD: You want me to take my aspect of the first topic? MR. MANALICH: Sure, if you're volunteering -- oh, here we go. Here we go. CHAIRMAN CARTER: Are you going to talk about the Sunshine this morning, Mr. Weigel? MR. WEIGEL: Among other things, thank you. Good morning, Mr. Chairman, fellow commissioners. I want to tell you that the county attorney office is very pleased to have the opportunity to speak with you all today. And I also want to thank Tom Olliff, our county manager, for assisting us to become to the top of the order in regard to the workshops that we presented to the commission as a whole over the weeks ahead. And also want to mention that you have with you two books: One is the county attorney office informational workshop book, divided into seven topics. Additionally, we provided a copy of the civil emergencies workbook that we had provided the commission in August of this past year, but not all the members have them at this time. So we're working that into our workshop today. And Mr. Ken Pineau of the emergency operations will loin us at that point a little later on in the discussion. I wanted to provide you all a donut to get your morning started, but Ramiro told me that with our current gift and ethics laws, I can't do that. COMMISSIONER COLETTA: You can give us the hole in the donut, though. MR. WEIGEL: But at any rate, there's a lot of can-dos that you'll be hearing about also. Most of the topics that we're going to discuss today are kind of a how-to type of instruction. Some of the advice will be how Page 2 January 16, 2001 not to do something. Now, the county attorney office doesn't like to be the how not to and tell its client what it can't do, how it can't get there, how it cannot achieve its very worthy goals. However, specifically we have to inform you, as well as all who may watch this program today or the video in the future, that the Florida Government in the Sunshine Law, the Public Records Law, Chapter 119, Florida Statutes, and the ex parte communications requirements are not what the county attorney tells you because we don't want you to accomplish your ends, your very worthy goals. We do tell you these things, however, because we want you to accomplish these goals, these ends, these projects, and we want to make sure that you achieve these ends in a defensible and worthy way. It's precisely because we absolutely desire for your projects to come to fruition that we take the opportunity whenever we can to advise you as to the procedures that are not created by you, but are imposed by the state on local government. As you are aware, the county attorney has provided this information various times in the past. I've had the privilege of speaking with board members individually one-on-one from time to time for five years now. But it's always an ongoing process. There are small permutations and changes that occur in the law from time to time, and we always want to make you aware of those things, too. However, this is the first time that this office has had the opportunity to have a workshop before the Board of County Commissioners. Thank you, Tom. And of course, it's the first time that we've had the opportunity to address this board collectively in this fashion. Thank you, board. At the outset, I'd like to make two or three observations. One, you the board at this workshop today will receive what we consider workaday information and knowledge on the Sunshine Law, the public records, requirements and ex parte communications. And you'll see that the Florida legislature has made the local government process a very open process. It requires you as elected officers to act in a meeting process; that is, essentially open to observation by the public in nearly all Page 3 January 16, 2001 aspects. Parenthetically I state, this does not provide for efficiency in a business sense. Secondly, I mention that it makes local governments more formal in their activities, with many requirements, before you can get anything done. It's not that you don't have the tasks and the goals and the plans and the vision, but there is a fame work imposed by the state. And it's up to us as your advisor, friend, colleague, to let you know, inform you, what those processes are, so you can get there quicker and once you're there, defend the process, make them stand the test of any challenge that may come. Secondly, I'm so pleased to say that this workshop plays to several audiences, and not just you. The general public, the newspaper, the electronic media, citizens groups, homeowners associations, development and business interests all should better understand that the rules for local government are largely established by the Florida legislature, and you have to follow those procedures. They will know, or should come to better know, that when they act with you in the formal meeting session or interact with you individually, providing information, making requests, that at the end of the day, as it's popular to say now, there are certain requirements that come into play, and that you know those requirements and you will see that you adhere to them and that they do, too. Thirdly, I just mention that the workshop is televised. And these topics are going to be presented to all of the county manager divisions and departments. Now, they may not need to know all seven topics at once clearly, but the ones that affect them, we're going to be out on the circuit to promote and inform, and we also will be talking to all of the 40 plus citizens advisory boards and committees. And we do this anyway. I just reinforce this to you, that part of our plan for this year is to more formally see to it that by the end of the year we will have talked with them all and answered the questions that they have in their own special experience. The productivity committee may have a different experience than the hospital healthcare committee. And the same goes with the groups that Page 4 January 16, 2001 are involved with land use, land planning, they may have various side issues that are based upon these solid topics. We're going to make sure that they have not only the opportunity but in fact the forced opportunity to spend some time with us in that regard. The books that we have here are published well beyond to pass out to you. And they're going to be available to all who wish them, within some limits. And the fact is that we can also break out individual parts of the booklet for individual groups. The City of Naples, other municipalities, are invited to take advantage of these things, or these materials. I've already spoken with the City of Naples in that regard and look forward to speak to the other municipalities. What we have is open, sharable (sic) and we think absolutely correct. As we go forward here, again, approaching the Sunshine topic, the first one, the questions on the topic may be answered at the end of the -- in the process of the presentation. And we have in fact reserved time at the end of each presentation for questions that you may create along the way. But besides that, feel free to interrupt, to ask a question at any time. Because it may be more cogent to ask the question in a particular part of the presentation than wait until some later moment. And now to talk about the Sunshine Law. In the book that you have, first topic, Sunshine Law, you'll find an outline and you'll -- that I prepared. And what it uses in large part is information that comes from the Government in the Sunshine Manual, which is published annually by the Attorney General office. Very good book. Covers Sunshine Law and public records. You all have these. And if you can't find them, please get one, make it part of your library. I think you'll find it handy reference. And the good part about the Sunshine Law is it's not really that long. It's only about 25, 27 pages. The rest of it's mainly public records, and that gets pretty lengthy. Also included in the outline under Sunshine Law is a 1993 Attorney General synopsis of various important parts of the Sunshine Law. And although it's dated, what's there is still accurate. And we think that it's of some use and handy reference. My approach to Sunshine Law over the years has been one, Page 5 January 16, 2001 let's get through the basics of the law, but two, how does it apply to the everyday life of an individual commissioner, a collective board or committee, and the delegation of functions that sometimes occur to committee members. First, what is the Sunshine Law? Well, it's -- Florida's Government in Sunshine Law does provide a right of access to governmental proceedings at both the state and local levels. It's an offshoot of the 1972, '74 Watergate proceedings, no question about it. The Florida Sunshine Law is one of the most far-reaching Sunshine laws that any state has in the union. I guess that's all of them. What is it? It's three things: The meetings of public boards or commissions must be open to the public; reasonable notice of each meeting must be given; and minutes of the meeting must be taken. It's as simple as that and as complex as the details therein. The Florida constitution has been amended to provide for the Sunshine Law to be recognized in it also. Relatively recently. The legislature, the state government has a strong affinity to the Sunshine Law. What's included -- what boards are included within the Sunshine Law? Well, all committees, all boards, all groups of elected or non-elected officials appointed by elected officials are in fact subject to the Sunshine Law, which means they again have to meet the three prerequisites: Their meetings must be open to the public, reasonable notice must be given, and minutes always must be taken. Does the Sunshine Law apply to members of public boards who also serve as administrative officers or employees? What does that mean? It means that if you as a commissioner or someone as a committee member, if they also serve as an employee, or have an administrative office related to the work that they're doing as an appointed or elected official, they may have an issue with the Sunshine Law. And what the Attorney General's opinions tell us is that you can occupy both places and be on the committee, but in your normal workaday life, if you talk with someone else in the business sector about matters that will come before that board or committee, or have been acted upon Page 6 January 16, 2001 within that board or committee within a recent time, that you're subject to the Sunshine Law and/or you may have a conflict and you've got to be very careful. What is a meeting that's subject to the Sunshine Law? It's any coming together of two or more persons. They can come together physically in a meeting, they could come together at a trolley, they could come together at a social gathering, at a homeowners situation -- meeting, they could come together in a social event or in a restaurant. So what does that tell us? It tell us that it's very easy to have a meeting. And if you have a meeting, you've got to have three requirements: Notice, minutes and the fact that it's got to be public, open to the public. That's why we strongly recommend the commissioners be very careful when they find themselves coming together outside of the board room. Yes? COMMISSIONER FIALA: So then when somebody comes in to lobby us, for instance, or explain an issue that they have particular concern with, or if we attend a civic association meeting where the people there give their opinions or feelings about a certain subject, but obviously there's no minutes to that or anything, is that why we have disclosure when we come up here, addressing a certain subject? MR. WEIGEL: Good question. And it's not absolutely related to the Sunshine meeting per se, but it has -- but it is related to Sunshine and the meeting requirements generally. And that is two or more commissioners in this case find themselves together at a meeting or homeowners association -- COMMISSIONER FIALA: Oh, I see -- MR. WEIGEL: -- then you have a Sunshine Law requirement, potentially, if the commissioners interact in any way informationally. COMMISSIONER FIALA: But if you're just alone -- MR. WEIGEL: If you're alone and you receive information and it happens to be in a land use type of topic, something that will come up in the quasi judicial area, which is conditional use, rezones, variances, things like that, neighborhood kind of things, land things, then yes, you can be there as a single commissioner. Page 7 January 16, 2001 No problem. But you need to take good note, be able to have the recall so that on the record later on at that formal board meeting when that issue comes up, you can say oh, yes, I met with the XYZ homeowners' association and they provided me letters. And even to some degree tell who talked to you. The more you have to bring back makes it more defensible if the case was ever challenged. COMMISSIONER FIALA: Thank you. MR. WEIGEL: But in a pure meeting context, what we are talking about here is that it's very easy to find yourself in a situation, a setting with other commissioners present, and if you cross the line and it can be challenged as a Sunshine Law meeting, that is, a meeting of commissioners, if you don't have those prerequisites of notice, minutes, adequate public notice, and in a forum where there's public access, you can run into problems later on. COMMISSIONER HENNING: Mr. Weigel? MR. WEIGEL: Yes. COMMISSIONER HENNING: An advisory board member comes to a commission member to discuss a topic that they approved or disapproved and that has come before the Board of Commissioners, is there -- where does the Sunshine Law fit in in that issue? MR. WEIGEL: Okay, another good question. I'll probably say that about every question, obviously. But the fact is, is that it's only you coming into a meeting with your four colleagues here that creates a Sunshine Law question for you. And if you meet with individuals from other boards or committees, that's not a problem as far as the Sunshine Law requirements go. However, if you have two members of a committee coming to meet you, you might, you know, say be careful, gentlemen, have you met the Sunshine Law requirement? Because they may be putting themselves into a position of risk as they come to meet you. But even if they should put themselves in a position of risk, and that is -- we're not talking about homeowners' associations or civic groups, but we're talking about committees created by this board. If members -- multiple members of the same Page 8 January 16, 2001 committee should meet with an individual commissioner, ultimately they're the ones that put themselves at individual personal risk or liability, and not you for having had the meeting. You're just one person and you're not meeting with your colleagues and so you're okay, as far as that goes. But from time to time it does come up that other committees, in their zeal and desire to accomplish something in a timely way, may in fact themselves put themselves in a potentially compromising Sunshine Law situation. COMMISSIONER COLETTA: Mr. Weigel? MR. WEIGEL: Yes. COMMISSIONER COLETTA'- I've got a question. How about where the commissioner, sitting commissioner, takes a part on a committee? Now you really have a situation that mires down in the mud as trying to -- explain to me how that would work. In other words, if you were a member of this sitting commission and you also were of the committee. I know in the past we have had commissioners that headed up different committees. MR. WEIGEL: Right. Well, the one thing of course we keep in mind is that those committees themselves are also operating under the Sunshine. Fully noticed, things of that -- public access, minutes are taken. So there's no problem with that aspect right there. Now, if the commissioner who is a member of the committee or subcommittee is coming back to the Board of County Commissioners, has no delegated authority from the board other than to attend there and participate in dialogue, things of that nature, we probably will not have a problem. But I will say that that gets us into the area that I spoke about initially of administrative offices and things of that nature. It gets us so close to that that any time that that comes up, whether it's at a board meeting or separate from a board meeting, I would ask that we fine tune that question and that situation with the county attorney office. Because there is a potential for a problem. It probably won't occur if we kind of tidy all the things and make sure that the directire of that commissioner from the -- from its board doesn't overstep the boundaries. But that's one where we need to be very careful Page 9 January 16, 2001 about. And that's where I was saying at the very beginning that the Sunshine Law makes it more complicated and more difficult to achieve very important and realistic local government goals. But because it's there, we want to see to it that it gets done properly and defensibly. COMMISSIONER COLETTA: Let me clarify that question just one more time, and I won't delay you any longer. If you belong to one of these committees, the individual members of the committee can't come to the commission office to talk to you, it would have to just be at the committee meeting or at the -- at a commission meeting when that particular item came up and they're making their presentations. You wouldn't be able to meet with the committee members in your office, that's correct, isn't it, if you're a member of that committee? MR. WEIGEL: That's correct. COMMISSIONER COLETTA: Okay, thank you. That's what I wanted to know. MR. WEIGEL: Okay, that's fine. CHAIRMAN CARTER: Well, let me pursue that a little further. What if you're the liaison to the board to the committee, and I'll use the productivity committee, and I sit there and I'm not a voting member of that committee, I am there to sometimes answer questions, et cetera. Does that say that the chairman of that committee or any member of that committee then in the future could not come and meet with me one-on-one? MR. WEIGEL: No, absolutely not. And that's a good distinction. Particularly if you're not a full-blooded member of the committee but there as a liaison or informational person to report back to the board, I don't think that you run into that kind of problem. At the same time, the other committee members always need to be careful that if they come and talk with a commissioner, they should only do it singly. And again, I -- this is the one area that I think we would approach and based on our discussions with the Attorney General, that we have to look at these very closely on a case-by-case basis so that if there's an area of risk, we can tackle it ahead of time. But there is a slight Page 10 January 16, 2001 distinction. COMMISSIONER MAC'KIE: But productivity committee, for example, I think I am a voting member. I think I'm a -- am I not? I wouldn't think of meeting one-on-one with a -- MR. WEIGEL: Right. COMMISSIONER MAC'KIE: -- committee member in productivity. MR. WEIGEL: That's right. And you should not, and you do not. COMMISSIONER MAC'KIE: Yeah. And frankly, I'm always going to err on the side of not having one-on-ones with people on which I sit on the same committees even, because I'm not ever sure if I'm a liaison or a committee member or whatever I am. It's just safer not to -- now, you can meet with people all day long. If I'm on a productivity committee and they want to -- a member of productivity committee. wants to come in and talk to me about, you know, their weekend at the beach or something that isn't ever on the agenda or conceivably to be on the agenda of the productivity committee -- I'm trying to think of an example, you know. MR. WEIGEL: Well, those general examples you give are absolutely appropriate. COMMISSIONER MAC'KIE: Do that all day. MR. WEIGEL: And you see, even two commissioners in this 1995 memo that I included in your backup materials here, I tried to respond to some of the common kinds of what ifs that come up, And, in fact, yes, commissioners can find themselves at a social event or at a civic event, or it could be the City of Naples something or some other event of a more social nature. The fact is, if they don't dialogue amongst themselves on something that will come up later at a board meeting, they can chat and mingle and even talk with each other. It's not as if you can't talk with each other, you just can't do it about matters that will come back before the board. COMMISSIONER MAC'KIE: But Donna and I can go to lunch and talk about our husbands, we just can't talk about anything we might conceivably ever vote on. Page 11 January 16, 2001 MR. WEIGEL: That's right. And as we -- COMMISSIONER MAC'KIE: Let's do that. MR. WEIGEL: -- as we tell you from time to time, however, you may be absolutely correct, but you may have to defend the perception that's out there. So if you put yourself in a position of some risk in that way -- and we may win in the end, and the questions of proof I think are actually fairly difficult, but the fact is, is it's not maybe the better thing to do with any kind of repetition. CHAIRMAN CARTER: But David, I think that goes to the perception of the community. You know, if the community has complete confidence in their elected officials, whether it's City Council, Board of County Commissioners, school board, you name it, I don't think that that perception thing will run rampant. But when there's been difficulties, and when there is a perception, there is conclusion, there is something going on, we just have to judiciously avoid social interactions where if Commissioner Coletta and I go to lunch together and we walked out of a board meeting and went down and had lunch together, right away there's a perception we're doing something that is not really above line. Where we might be talking about baseball, football or anything else. And we just have to be careful. MR. WEIGEL'. That's exactly right. And another thing that -- kind of a ground rule, you might say, is it wouldn't be bad to have a third person there for possible defensibility, when you put yourself -- if you should find yourself in those kinds of situations. But we don't recommend them. They're not absolutely per se against the law, no question about that, but at the same time there are issues of perception that do come up from time to time. Let us talk briefly about telephone communications and computer communications. Obviously commissioners and committee members can't chat with each other on the telephone about upcoming matters. That's absolutely inappropriate. You cannot communicate by computer back and forth on upcoming matters. That's wrong. We can't countenance that in any way from a legal standpoint. But from time to time a commissioner will send an informational memo to the other commissioners, stating a point Page12 January 16, 2001 of view or something's that's coming up. That the Attorney General has indicated is not wrong, per se, it just can't be taken any steps further. The memo should not be soliciting a response. The receivers of that memo should not undertake to respond, whether asked to respond or not. It is not a problem with the Sunshine Law, but once there's any kind of response, that is, tit for tat back and forth, then we have a Sunshine Law problem and it would be per sea violation. So it can be done, it is done, and it's not legally a problem. And I think it can be certainly an important mechanism from time to time to provide some focus. The same thing happens at like a civic association where there's maybe a topic of general community interest. A commissioner there, knowing or not knowing -- hopefully you'll know if other commissioners are there, kind have your antenna up. But you can't use the committee or the event as a subterfuge to communicate to other commissioners. Don't do that. It's better to drink it all in. You may have a platform that you've always maintained which you restate there, but please don't get involved in the individual issues and place yourself in a position of having to defend that, although you were speaking to the group as a whole, that you were actually communicating to another commissioner of what you hope for them to know and to do. COMMISSIONER FIALA: Back to memos should not be soliciting a response. MR. WEIGEL: Absolutely. COMMISSIONER FIALA: Well, say for instance I wanted to ask Commissioner Henning, I mean in the public, if there has been an increase in odor from the landfill over the past week and I put it in writing and I sent him a memo. I would naturally be looking for a response. How would I do that? COMMISSIONER COLETTA: No, you can't. CHAIRMAN CARTER: You can direct -- MR. WEIGEL: Well, as I -- COMMISSIONER FIALA: You can't do that? MR. WEIGEL: -- as I speak with some of the other Page 13 January 16, 2001 committees throughout the county, I say -- that's a hypothetical question, I understand, but beyond that, the fact is you shouldn't do it, it's inappropriate to do it. COMMISSIONER FIAI. A: Well, then how do you ask somebody a question? MR. WEIGEL: You'll have -- COMMISSIONER MAC'KIE: Ask Tom. MR. WEIGEL: -- to ask someone else. MR. OLLIFF: You can either ask me, or in the open forum of the meeting you can certainly ask. Because then that becomes a public question where the public's party to both the question and the answer. COMMISSIONER FIAI. A: But if you don't have a chance to ask it in the public because the meeting is a week and a half away, I can ask you and then you can ask Tom. MR. OLLIFF.' And hope -- well, no, I can't ask Tom for you. I can't play go-between for you. You can ask me and hopefully I can get you the information that you're looking for. COMMISSIONER FIALA: Oh, I see, okay. It's pretty difficult then to seek any information, isn't it, if you're gathering research or-- COMMISSIONER MAC'KIE: Just ask Tom. CHAIRMAN CARTER: Just go to staff. COMMISSIONER MAC'KIE: Go to staff. CHAIRMAN CARTER: Go to them and they will get you the information that you want. COMMISSIONER FIALA: This is a good thing we're doing this today. Luckily I haven't had to ask that question. CHAIRMAN CARTER: But if you have 51 complaints on you name the subject and you put out to the commissioners, for your information, I have received 51 complaints on the da, da, da, da, da, there's nothing wrong with that, it's informational. All you're doing is alerting them to what has taken place on a singular subject. You're not asking for a response, you're communicating information. COMMISSIONER COLETTA.' Now, let me carry that the next step, too. I just recently -- give you an exact example. I had a gentleman making a request on a zoning matter Page 14 January 16, 2001 that's in District 3. I would like to be able to send it on to Commissioner Henning. Can I do that as a forward thing, or since it came to me, can I just forward it on to him for his information, or am I violating the Sunshine by doing that? MR. WEIGEL: That's another close one. COMMISSIONER MAC'KIE: He's not -- CHAIRMAN CARTER: No, he's not -- COMMISSIONER MAC'KIE: -- Joe's not saying and tell me what your response is, he's saying here's some information from a constituent. If he said here's some information and copy me on your response to the constituent, that would be communicating between the two. MR. WEIGEL: Well, it is. But what we have occurring here, though, it would appear, particularly this is land use related. COMMISSIONER COLETTA: Zoning. MR. WEIGEL: Yeah, zoning. For instance is that you are becoming part of the ex parte communication process yourself. Now -- so the commissioner who receives from you will have to say well, I received something from you outside of the board meeting in regard to such and such. It's okay because he reports it, but he or she must put that on record or they've got a problem. And it can flow back perhaps in a less complimentary way. You must be very careful about those things. If someone is coming to you, again, it may be you say thank you for sending this to me, and let them send to it the other commissioners as far as -- COMMISSIONER COLETTA: It sounds like to them -- could I send it to like a county manager and have him forward it on -- MR. WEIGEL: You absolutely can. COMMISSIONER COLETTA: -- because I -- the person who originally sent it would feel insulted if I called him back and said would you please send to it somebody else. MR. WEIGEL: And that's a very good -- COMMISSIONER COLETTA: Okay, I'm glad we thought that. MR. WEIGEL: -- position. You can boot it out to anyone else, but just your colleagues up there that it gets problematical with. Page 15 January 16, 2001 COMMISSIONER FIALA: Okay. So then one step further again with the memo soliciting a response. Does that only mean between us as commissioners? Can I ask Jim Mudd or Norm Feder? MR. WEIGEL: No problem. We're talking no problem with regard to that, Commissioner. You can ask questions of all staff. It's just the decision-making process, the state says among you, you are the decision-makers, has to be out in the open so that you can't pass information back and forth among yourselves or ask questions and receive information outside of the public notice, public meeting forum. But sure, you can ask Tom or our office or anyone for information. And that's separate and apart from -- if we have enough time at the very end of the meeting, we'll talk a little bit more about the ability -- the very last topic under board administration, the ability to work with staff and how broad that is. It's actually quite broad. But there are a few little things to take care of along that line. You can ask questions of staff or of Tom or of us at any time. Don't ask us, however, to carry your information to another commissioner. We can't do that. COMMISSIONER COLETTA: And on the other note, how do we handle our constituents when they come in and they say well, I know for a fact that -- I was just talking to Commissioner Henning -- COMMISSIONER MAC'KIE: Say shhh. COMMISSIONER COLETTA: -- that he is of this opinion or that opinion. Do we cut them off at that point in time and just tell them that they're violating the Sunshine Law-- MR. WEIGEL: Well, I think-- COMMISSIONER COLETTA: -- if they go any further? MR. WEIGEL: See, they're not -- you're not violating it by hearing it, but I think it's appropriate to say I'd rather -- something to cut them off would be good, just because that's the better practice. COMMISSIONER COLETTA: Okay. MR. WEIGEL: I wouldn't encourage them to continue their discussion and go into great detail. Say okay, that's fine, we'll Page 16 January 16, 2001 learn from them at the meeting. But by virtue of the fact that you're not soliciting from that intermediary what the other commissioners are thinking is good on your part. But anyone, whether it's the staff or whether it's the private individuals that have issues and questions to press before you, should not themselves be communicating what other commissioners' thoughts are. And some commissioners tend to keep their thoughts a little more to themselves and just receive information and not allow themselves to be potentially utilized that way, which is something to consider. COMMISSIONER COI. ETTA: Another question, too, if I may. MR. WEIGEL: Sure. COMMISSIONER COLETTA: Just until we get to the point where we truly feel comfortable with this, is there a possibility that maybe memorandums to the other commissioners might be directed through your office and then you in turn can send them back out? This would prevent anything where maybe there might be the suggestion that we're looking for a reply or something? Would that be a safe way of doing it? MR. WEIGEL: You can always do that. We'd be happy to -- from any individual commissioner-- COMMISSIONER COLETTA: That's the way I'll do it. MR. WEIGEL: We'll obviously respond instantly, or nearly so, and provide you what you need to know. COMMISSIONER HENNING: Mr. Weigel, could you give us examples of an informational memo that is appropriate and one that is not appropriate? MR. WEIGEL: Okay, well, be aware of the informational memo that has a question mark or kind of has an upward lilt as you read it at the end kind of soliciting a response. But if you -- a commissioner may write and say I have a concern about the enormous amount of stormwater that's accumulating in North Naples. Just a hypothetical. That can be communicated to other commissioners. And it's just a statement. It's not saying give me solutions or let's start talking or let's meet for lunch, none of that. But that's the kind of thing that's okay, if you have a concern or there's a topic on Page 17 January 16, 200t the horizon coming up, something like that. But that's really all the kind of attention that you should give it, if you choose to create that kind of memo at all. I'm almost at the end -- clearly at the end of my time and probably the end of my rope here, but I do want you to know that fortunately, or unfortunately, as the case may be, in fact the violation of the Sunshine Law, if one should occur -- and this county has a very good record in them not occurring. But if it should occur, it's a second degree misdemeanor and it is subject to up to $500 and potentially a little bit of jail time. Now, no one expects that to happen, but at the same time, if it's egregious, you never know what the court may do. And our -- our philosophy and our experience with the courts are it would appear that the courts look at these things rather rigorously. If there is a question or an issue that comes up where ostensively there might be a meeting that you're not sure about, please ask the county attorney office. And to the extent that minutes or things can be created to take care to some degree of the recordkeeping and other requirements, we will assist to make sure that as much is done as possible after the fact. But we hope never to have after-the-fact situations, if at all possible. I did want to mention about telephone communications. When a commissioner is ill, out of pocket, is unable to attend a meeting, if there is a core, that is a quorum, that is physically present at the board meeting, then and only then could a commissioner who can't be, physically be at the meeting, participate by telephone or video and telephone. We've done this a couple times in the past, and it's worked pretty well. The telephone hookup is such where the commissioner who's away can hear everything that goes on at the meeting room and that the public can hear that commissioner at any time that absent commissioner wishes to speak. With that, I'm going to turn this over -- if there are -- certainly if there are other questions, we can take them at any time during the course of the day on any subject at any time, but I'm going to turn this over to Assistant County Attorney Bill Mountford, who's going to talk briefly about the closed session, the executive Page 18 January 16, 2001 session, which I'm so happy-- MR. OLLIFF: David, just -- MR. WEIGEL: -- that this board has embraced. MR. OLLIFF: -- before you change topics, could you just give them a brief on E-mail as well? Because there is a tremendous amount of correspondence that goes back between the board and the staff within regards to E-mail. MR. WEIGEL: Thanks, Tom. E-mail is a public record. That which you receive in the course of business is of public record, that which you create in the course of your business, commissioners, is of public record. To E-mail back and forth amongst you is no different than a typewritten or a handwritten memo or note. It should be treated the same way. And of course because these are public records, and Mr. Pettit will be talking about that briefly, right after Bill Mountford, they have to be given special consideration also. And we've got a few ideas on that we think would be quite helpful. COMMISSIONER COLETTA: You might mention also that if you receive E-mail that even generally refers to the county in any way or business for the county at home, it should be forwarded back into the office to be archived. MR. WEIGEL: If you receive it at home? Yes, that's correct. And obviously there are different electric or mechanical ways to do that. One is to -- maybe you can print it at home and make sure it becomes part of the record. Archiving is what's important. I think that's very good. COMMISSIONER MAC'KIE: And at some point later today we're going to talk about E-mail specifically? Because that's one where I think we could do a better job of making the records available to the public -- MR. WEIGEL: That's exactly right. COMMISSIONER MAC'KIE: -- than we are doing. MR. WEIGEL: I know Mike has a lot to tell you about that. Thank you very much. MR. MOUNTFORD: Commissioners, Bill Mountford. In certain cases the necessity of meeting in closed session to discuss settlement negotiations and/or litigation strategy cannot be over emphasized. To the credit of this board in the Page 19 January 16, 2001 past, they have done that. Most recently they did it just before the board was presently constituted in the beach renourishment litigation. And of course to the attorneys involved, that was a very great help. Closed sessions are not needed all the time. They're only needed in situations where there may be significant questions as to liability or significant damage questions, and the board's guidance is needed by the attorney handling that matter. As you're well aware, nobody wants to start a lawsuit. It's costly, it takes time, and it only happens when all else has failed. But over the years, certain time-tested factors have in my opinion come down, which is determinative of where we're going in a lawsuit. And the first thing we have to know is what reasonable result we want to achieve. The second thing that's important is a good strategy to get that result. And third, which isn't mentioned a lot of places, is the cost effectiveness of your desired goal. And of course lastly, not letting your opponent know where you want to go. And that should be self evident. Based upon my years of experience, every case I've ever been involved in has a hook. And a hook is usually a result of pretrial preparation, and it surfaces somewhere. And that hook will have a significant effect on the outcome of the litigation. Usually it has to do with a liability issue or a damage issue, sometimes a combination of both. That hook is of no value to the attorney if the other side knows about it. I think the easiest example I'm aware of is in Florida. Most cases go to non-binding arbitration. I do not know any competent attorney that will go to a non-binding arbitration on behalf of its client and let it all hang out. Because if the other side is half competent, you know by the time you go to trial, they're going to have an answer for that, letting it all hang out, and you're going to be behind the eight ball. And that happens time after time. So that's why the importance of the closed session cannot be over emphasized. Now, it's also to me significant, and I hope to the board, that there's no sense in spending $10,000 to resolve a case that could have been settled for 500, unless there is a purely legal principle Page 20 January 16, 2001 that we're trying to put forth. But other than that, we very rarely cure legal principles in litigation I do, personal injury, that type of stuff. There's usually two versions, two sides to each issue, and there are merits and demerits to both sides. The procedure is basically very simple. The -- at a public meeting the board attorney has to request that he wants to discuss litigation or trial strategy with the board at a closed session. Public notice is given. At that time the Chair announces at an open public meeting that they're going to go into closed session. The closed session of course is recorded by a court reporter. At the conclusion of the closed session the Chair comes back out and announces that the session was terminated and goes back on the record. And at the end of the litigation, the transcript of what occurred in closed session is made available to the public. If you have any questions, I'll try to answer them. CHAIRMAN CARTER: I think the key thing is in closed session we do not make a decision, we discuss strategies. And you said that. And that's what we do, strategies. MR. MOUNTFORD: The statute's very specific. CHAIRMAN CARTER: Right. And when we come back, we will give direction to legal staff to take us forward, but we're not going to tell the world what we're doing. At the end, as you said, when it's resolved everybody knows what went on. MR. MOUNTFORD: Correct. CHAIRMAN CARTER: And I think that's important for the public to know that when you said cost effectiveness, we are saving tax dollars, when we are sued as a county, by not letting it all hang out. Because if you do that, watch the numbers go up. So it's to me I think a pretty logical, simple process that what we're doing is preserving our rights, the rights of the citizens of the county that we represent, and that's why we go to closed session judiciously on certain cases. MR. MOUNTFORD: I couldn't have said it better. CHAIRMAN CARTER: Well, it's just a layman trying to work through the legalese. MR. MOUNTFORD: I like -- lay people make more sense to me than a lot of lawyers, but -- I've been a lawyer a long time. Page 21 January 16, 2001 CHAIRMAN CARTER: I won't go there. MR. PETTIT.' Good morning, commissioners. My name is Mike Pettit. I've been in the county attorney's office about six years. I had a brief departure to private practice and came back during that time. My primary areas of responsibility are representing the county in all matters of litigation and also providing advice and counsel for the human resources department and risk management department. I'm going to speak briefly about public records. Before I do that, I just want to mention something that came up in David's topic. The situation where your constituent comes in and says well, I've talked to commissioner so and so and I've talked to Mr. so and so and they're going to vote this way. And I was lucky enough in a litigation we had last year with the county to have several commissioners be able to say under oath that as soon as that statement from the constituent came forward, they were able to say I'm sorry, but I can't listen to that statement. I'm not trying to be impolite, but I can't know what commissioner so and so -- and I can't take that into account anything I decide. And I thought that was powerful evidence for the county in that litigation. So I just leave you with that thought. The materials you've got, briefly, I have a brief outline I prepared. There's a more in-depth outline of the public records law that was done. It's behind tab two, all these materials are, by Patricia Gleason from the Attorney General's office. She's something of a guru to I think all we state and local government lawyers on Sunshine and public records issues. She's always available to talk to on the phone and she lectures at seminars around the state on this subject. In addition, I provided you, and this may be overkill, a copy of Chapter 119, which is the Public Records Act, but it's there so you can flip to it quickly, if you wish. And also a copy of our Resolution 98-498, which is a resolution we passed to have a uniform county policy on charges that we can lawfully assess when somebody makes an expansive public records request that requires extensive use of either Page 22 January 16, 2001 technology or supervisory clerical resources. Also, Mr. Weigel mentioned, and I'll mention again, the Government in the Sunshine Manual. It's easy to read, it's not overly legalistic, and what I like about it is it does give you all the practical situations and circumstances that have come up that you may run into that at least have been reported either by the Attorney General's office or the courts of the state. When we talk about public records law, the first place I think you need to start is the policy of the state strongly favors open access to public records. And that policy is so strong, it's imbedded in our state constitution, in Article 1, Section 24. The legislature passed Chapter 119, which contains all of the laws governing the day-to-day issues that arise with public records. And the Florida courts have liberally construed the constitutional provision and the Public Records Act in favor of open access to public records. And so I think every time you're confronted with a public records question, and this would go for staff as well, you have to put that question in the context of that policy. Because chances are it's going to be a public record, chances are there's no exemption that restricts it from public access. And just obviously each situation has to be reviewed on its own merits, but there's a strong policy in favor of open disclosure. And like I said, the constitution, our Seminole legal document for the structure of government and law in Florida, the legislature and the courts are all in agreement here. What is a public record? Seems like it would be simple enough, but sometimes it isn't. The Florida Supreme Court has said -- I'm going to have to read this. A public record encompasses all materials, made or received by an agency in connection with official business which are used' to perpetuate, communicate or formalize knowledge, regardless of whether such materials are in final form. And in the short outline I included, as well as in Ms. Gleason's materials from the Attorney General, you'll see all kinds of examples of public records. But let me focus on a couple that I think are important to kind of get in all of our minds how broad this definition can be. Page 23 January 16, 2001 Copies of letters or other documents received by citizens which are in turn given to the mayor of a city in his official capacity have been held to be public records. And Commissioner Fiala mentioned attending a civic association meeting. She goes to the meeting and other people at the meeting, not in the employment of Collier County, citizens who are there because they've got a concern about an issue, have obtained documents from some third party not in the employment of Collier County, and they present those documents to Commissioner Fiala, and she's there to transact official business because she's there as a representative of that district and that constituency. She brings those documents to her office. They're public records. That's how far removed it can be and still be a public record. CHAIRMAN CARTER: Can I ask you a question -- MR. PETTIT: Sure. CHAIRMAN CARTER: -- though? When that take place -- I want to know if I'm right. When someone hands me a document, I always advise them, you give me that document, it is now public record. MR. PETTIT.' There's an argument that in certain limited circumstances it might not be. But I think the only qualification I would make, it is highly likely or almost certainly to be a public record. If it's obviously -- if it's in the context of you out there acting as a commissioner. CHAIRMAN CARTER: Right. In my role, they hand me something in regards to-- MR. PETTIT: It almost certainly is going to be a public record. Now, it may be subject to some exemptions which we can talk about as we move through my discussion here, but it almost certainly is going to be a public record. CHAIRMAN CARTER: I always felt that they should understand that if you give us information, then therefore it does become a part of the portfolio of the subject being discussed. Consequently, if they don't want it in that portfolio or they don't want to be involved in it, they now have an option to make a choice to either just come and speak to the issue or they have options. Because I don't think the public in general understands this whole openness and Sunshine. And this is why it's good if Page 24 January 16, 2001 anybody's watches today really tracks that this is what we're doing there and why we have to do what we do. MR. PETTIT: And that's of course why people will come in and say I've talked to Commissioner Coletta and he's going to vote this way. And they tell you that. And they're not intending to do something improper most -- 99 percent of the time. They just don't understand the restrictions that we operate under. COMMISSIONER FIALA: It's hard for us to understand. COMMISSIONER COLETTA: Could -- COMMISSIONER FIALA: Another-- I'm sorry. COMMISSIONER COLETTA: Go ahead, ladies first. COMMISSIONER FIALA: At home I have a big file of committees that I've worked on over the years. Say for instance something about landscaping a median comes up and I want to go back into my records. If I brought those records into my office from my home, they then become public record? Being that they're -- they're my own, but I'm bringing them into my office now, MR. PETTIT.' I believe if the records are being brought in to perpetuate knowledge in the transaction of official business, the answer is yes. I don't mean to answer that legalistically, but I want to point out a couple things. Why are you bringing the records in? Because in a moment I'm going to talk about commissioner calendars and what's on those calendars, and we'll talk a little bit about sometimes some things aren't public records. But in your circumstance, if you brought that in and you're going to use that information to vote or deal with your constituents in the transaction of official business, I believe that would be a public record. CHAIRMAN CARTER: On the other hand, if she made notes from her files and just brought the notes in, the notes would only be-- COMMISSIONER COLETTA: But the files, no matter where they are, have now been accessed, so they're part of public records. MR. PETTIT-' Well, let me address this. There's two questions. Page 25 January 16, 2001 Did you have a question first, Commissioner Coletta? COMMISSIONER COLETTA.' Yes. Well, it's concern over the fact that public records really aren't public because there's a fee attached to them. And in some cases I think the fee is unreasonable. I had an experience back about four years ago when I was trying to get a little bit of background on what was actually happening in the county commission, where I was billed 60 some dollars. And I thought it was very unfair at that time. And I always said some day I'd have an opportunity to address it, and I think this is the time to do it. I've instructed my secretary also, because of this one instance, that if anyone comes in looking for public records that relates to me, I'll pay the first $10 of the fee. But I want the fee to be much more realistic than it is. I want access to be much more open. If we're going to be a Sunshine -- if it's a Sunshine in the Sunshine, it should be truly in the Sunshine. If E-mail is available, it should be available on the web to anyone out there. There is no public record that should be difficult to access or hard to find. If it is, if they ask for something that's totally unreasonable, they're looking for hundreds and hundreds and hundreds of records, I see assessing a reasonable fee for it. But I think we have to be more realistic, because all we're doing is we're acting as a barrier. We're saying that the people that have the wealth can go ahead and get the public records, and those of lesser means don't have access. And this is really a problem for me, and I'm glad I had the opportunity to bring it up in this meeting. CHAIRMAN CARTER: Well, Commissioner, he can respond to it, but I respectfully agree to disagree. You go to the library and you want something, they charge you to make a copy of it. If you open it up that anybody can get anything for free, how much of the public taxpayers dollars are we going to spend for somebody that wants to come down and look at you name the issue? I think a reasonable fee I don't have a problem with. I think people should be willing to accept that as a part of the process. If there's something -- and there may be exclusions to this, I don't know. But I've never been one to open the door and say Page 26 January 16, 2001 here, just come in and we'll take our staff time and we'll spend hours and hours -- COMMISSIONER COLETTA: I didn't say that. CHAIRMAN CARTER: -- and do all this stuff. And what happens, we've had cases where people say I want all this stuff, and we'll make boxes of copies of stuff. COMMISSIONER COLETTA: And I agree with you, they should be charged -- CHAIRMAN CARTER: And in two minutes they'll say well, I've seen enough and they're gone. And we have probably spent, oh, a couple thousand dollars at least -- COMMISSIONER COLETTA: Commissioner Carter, that's not what I was saying. When I originally asked for records, they were a limited number. And I thought the fee was very unjust. I can understand charging someone that wants to do massive research for their -- the time for staff. But anything that's reasonable, when someone is asking for four or five copies of something, at that point in time we should make it available in such a way that it's not going to be a financial burden for those people to assess public records. COMMISSIONER MAC'KIE: Don't you think our staff kind of uses their discretion from time to time on that? I would hope they do. Do they, Tom? I mean, they have authority to -- if somebody wants two pages, they can just copy it and give it to them, can't they? MR. OLLIFF: We do. There is a policy that says that the county may charge up to and I believe it's five cents a copy, plus whatever is reasonable staff time. And I think -- hopefully the staff is using some discretion in that regard so that people who are abusing are -- because that does happen -- are, when people are coming and looking for an excessive amount of information, that we do have the ability, under policy, to charge. But hopefully they're not doing that for the person who's coming in looking for a four or five-page copy document of something. And if you do hear about that, I'd love to know about it. COMMISSIONER COLETTA: I certainly will pass it on to you Page 27 January t6, 2001 at that time, if it ever does come up. MR. PETTIT: This is a subject we may -- CHAIRMAN CARTER: I just don't like to open a box and let people say hey, I can get 100 copies. I'm not going to go there. MR. PETTIT: We may want to revisit this subject. And Commissioner Coletta, in particular, review Resolution 98-498 in this package, which really sets out our charges. It's 15 cents and it says shall charge. The resolution then says we may charge for other kinds of charges. And it's something you may want to review, and we can talk more about it. Documents that are circulated for review, even if you think they're not a final document, become public records. In other words, it's the for-your-information or this-is-a-draft-what-do-you-think type document. Once those are circulated among county staff or from board to staff or from staff to board, those become public records. Handwritten notes or public records, if you use them to perpetuate or formalize your knowledge -- we go back to Commissioner Fiala at the meeting, and she takes detailed notes, because she wants to remember what was discussed, and she comes back and she has a file that relates to that subject matter, she puts them in the file. She's perpetuated that knowledge. That's a public record. Now, there may be a situations where handwritten notes aren't public records. For example, same meeting Commissioner Fiala goes, listens, takes no notes, comes back and thinks I need to get something to Ed Kant, the transportation director -- who was here, I think he left -- about this. You jot down a few notes to collect your thoughts and kind of remember what you heard. Then you generate a typed memo to Mr. Kant. I think the underlying notes probably aren't public record. The memo is. Because it was anticipating there was a precursor document. And you didn't circulate them to anybody. You didn't intend to keep them necessarily and you didn't give them to David Weigel or Tom Olliff or whoever to look at. I think the best caution we can give, if you've got a question on whether something is or is not a public record, consult our office, consult the materials we've given you. Page 28 January 16, 200t Let me talk about the not official business situation, and I'll get Commissioner Mac'Kie with this. In another piece of litigation, we had to produce all the calendars of all the commissioners for a set period of time. And on her calendar every week she picked her kids up at soccer practice. That's not official business if -- I think we went ahead and produced that anyway and didn't redact it. But we would have the right, because it's not official business, to delete that. That means we still have to produce the calendar page, but that's deleted, and all we have to be able to do is to defend why we deleted it. But remember, those calendars, if you intersperse your personal and official business, there may be places where it gets murky and it could become a public record. Typically, though, if it's clearly not official business, it wouldn't be. COMMISSIONER MAC'KIE: Like don't put on there therapy session. Probably not going to -- CHAIRMAN CARTER: Well, we all need that, right? MR. PETTIT: That might be exempt. COMMISSIONER MAC'KIE.' Might not. Might be official. MR. PETTIT: Exemptions are something different from public records in the sense that you've already done the public record analysis, it is a public record, but the legislature or the constitution has decided no, this doesn't have to be produced. And they come in several types, and they can be tricky. There are temporary exemptions and permanent exemptions. Let's talk about a temporary one that Mr. Mountford mentioned. When that court reporter takes down the notes of your executive session on the litigation, that's exempt at that point. That can't be given. The press can't come in and get it, the other side can't come in and get it. As soon as you win the lawsuit, lose the lawsuit, settle the lawsuit and the lawsuit goes away, however, then that's open for anybody. So it's only temporary. A permanent exemption would be -- an easy example is the Social Security numbers of current and former county employees. And we typically get requests for personnel records. The disciplinary record, good and bad, is all going to be a public record. But we go through and we delete Social Security numbers. And I think there are some exceptions for pension Page 29 January t6, 2001 information and health information. And those may appear in a personnel file, and we're allowed to exempt the personnel file on those matters. Code enforcement officers, at least current ones, and it occurred to me that maybe former ones this doesn't apply, but certainly current ones we cannot disclose telephone numbers, addresses, for obvious reasons. And we have similar things in the law for police officers and states attorneys and those kinds of folks. But I think the most important one -- and I don't want to run out of time before I get to this -- is the exemption for attorney/client product, work product. And the definitions in here, it's records prepared by an attorney or at the express direction of the attorney, for the county containing legal conclusions, theories, strategies or thoughts about pending or imminent civil, criminal or administrative litigation affecting the county or in which the county is involved. It's a difficult definition. And it's tough because it's not like in private practice where if Commissioner Carter's my client and he comes in and he asks me to write a memo to interpret a statute to help him do his business and I do that, that's -- nobody can get that, absent some very unusual circumstance. Here, if Commissioner Carter sends a memo to David Weigel and says I need to understand Statute such and such, would you please write a memo and tell me how it applies. Now stop and think about it. No attorney asked to you write that request, you're not -- you were not the attorney representing the county at the time, and the request doesn't relate to civil litigation or any kind of litigation. Your request and Mr. Weigel's response in my opinion are public record. It's not protected in the same way that it would be in a private setting. So you have to have those special magic aspects to it to be protected. There has to be litigation or imminent litigation. There has to be a decision by an attorney to write something, or the attorney asks somebody to write something. And that happens. Sometimes I'll ask somebody on Tom's staff, in the course of litigation, would you prepare a chart for me, would you prepare a list for me. Those things are protected. Page 30 January 16, 2001 The restrictions we may place on public records, and this speaks to some of the issues raised by Commissioner Coletta, are narrow. We can't set an arbitrary requirement that the request has to be in writing. We can't set an arbitrary time limit in which we will produce the document. We can't say gee, that request is kind of vague, we don't understand it, you need to make it more particular. The Florida Supreme Court has said that the amount of time to respond is the reasonable time in which we would have to retrieve the record and delete any exemptions. And I think what's important here, the Florida Supreme Court used the word reasonable. That's a quote. Reason and dialogue with the person making the request. And over the years through trial and error, sometimes error, unfortunately, what I've learned is people make public records requests. And if you go right back to them and if they seem just ridiculous or overbroad or too much, you sit down and you talk with them about it and then you put it in writing and say this is what I understand your request to be, and then you get busy and you answer it. And most people -- the press has been reasonable in that regard. Most people, even when they're feeling hostile to the county, will be reasonable about the amount of time at issue. You can explain these boxes are in off-site storage, we're going to have to have somebody look through the box. Most people are pretty reasonable. And so I think dialogue is important with the person making the request. And it eases our administrative issues. Some of the ideas we have to facilitate access I think again, going to Commissioner Coletta's point, and maybe Commissioner Mac'Kie was touching on this as well, as I understand it at least one board here in Southwest Florida now has a standalone computer which allows people to access calendars and e-mails of commissioners. So they can come in, they don't have to borrow -- bother Ms. Filson and her staff. And we usually try to work with her staff when she gets these big requests, either through us or to her. We have paralegals that are trained and public records, a lot of work with her staff. But it might be something to consider. And I think Mr. Weigel has a little more Page 31 January 16, 2001 information on that than me. So there are ways to ease the burden and also address the concern and let's let the public see what we have. Finally, very quickly, we have civil and criminal penalties on public records. The civil penalties really come when somebody files a lawsuit and says you didn't give me the public records or you didn't let me copy the public records. And if we lose the lawsuit, even if we acted in good faith -- good faith to me would be two things: One is we think we have an exemption and we're wrong, or two is it sits on somebody's desk because they're real busy trying to get a road built or they're real busy with some other project and it just doesn't get answered in a timely fashion. It's not intentional, it's just this is what happened. We have to pay their attorneys fees. And if there is a knowing violation of public records law by a public official, an intentional destruction of a record, for example, I'm going to destroy this record because I don't want anybody to see it, that person can be subject to impeachment, suspension, removal, first degree misdemeanor, $1,000 fine. So you can see again the policy at work. It's a strong policy that contains a lot of teeth. If you've got any other questions, I'll be glad to answer them now or at some other point. MR. WEIGEL: How are you doing up there? If there's any need for a break or anything, we can take one at any point. Okay. MR. MANALICH: Good morning, commissioners. I'm Ramiro Manalich, chief assistant county attorney. The topic before you today at this point, ethics, is something that I guess has been slightly covered by the media in recent months, so obviously we should spend a little time on it. Actually, in all seriousness, the purpose of my presentation today is to acquaint you with the basics of the ethics laws that affect the county. Now, under the theory that the visual compliments the oral presentation, I'll try to integrate some of the slides -- some of my comments. And in this first slide, I think we kind of get the flavor for the whole idea behind the ethics law, which is the citizens, the public, the media being able to watch their government and Page 32 January 16, 2001 have, as a result of being able to watch it, confidence in the integrity of that government. And that's what these laws are set up to try to accomplish. Let's take a few moments and let's talk, because really, we have three levels of laws that affect you as public officials in Collier County. Now, in the graphic there, you basically see some chess pieces. The reason I put that up there is essentially when we talk about the ethics issues, we're looking at three levels of analysis. And I'm reminded in the Seventies popular series Star Trek with Mr. Spock, the very intelligent Vulcan would play chess on three levels. And if he made a move on one level, it might affect a piece on the third level. And while I don't want to over complicate this, what I want is to sensitize you to the fact that since we have three levels of laws, the state, the county and the human resources rules and procedures for employees, any time an ethics question comes up, it may involve more than one level. This is a quick example to sensitize you to this. Let's suppose we have a gift from a lobbyist in the amount of $110. Well, if that gift is given by the lobbyist to one of you under circumstances, it clearly demonstrates that it was out of family relationship or more likely personal friendship circumstances why it was given, you have a defense, and you can accept that gift under the local ordinance, because it's built in, that exception to the local ordinance. However, don't get too comfy with that, because actually under the state law you would still be in violation, because the state law doesn't recognize that defense. So my only point there is not to create fear or anxiety, my point is merely to sensitize you that we must look at three levels on these issues. Now, essentially if we look first at the -- well, let me make a few general comments before we get into each of those levels. I think as some of the other speakers have commented here today, when we're dealing where there's public records, Sunshine Law or certainly ethics, we have developed over, you know, millions of years of our existence on this planet instincts, you know, and we have -- when you approach situations of Page 33 January 16, 2001 concern or danger, we react. And pay attention to that. I mean, if you have a situation where you're at a meeting, you're faced with any situation where something inside of you raises concern, listen to it. And if you don't know the answer right then and there, think about it and follow up, follow up with our office. We're always available. But that's a good thing to have that reaction occur. The other thing I would say in general is especially when it comes to gifts, which was a lot of what the local legislation was designed to deal with, my general advice on that, despite all the technical rules, is when in doubt, do not accept. And only accept when you can point to a specific authority or exception that allows to you accept. And that by far is the safest rule of thumb to follow. Another thing, David alluded to this earlier in his presentation, which is, you know, we talked about perception. And sometimes unfortunately perception tends to actually become reality. And in ethics issues it is especially true. And we can advise you and we will try -- David always tries to advise you in terms of here's the legal technical requirements. But he also tries to be an advisor in a general sense and say think beyond just the legal technical requirements. What are the political and public relations ramifications of this particular action or non-action, as it may be. Consider another thing, which is the lengthy process which the State Commission on Ethics has set up for investigating and dealing with ethics complaints. If you consider that that process can go on for a number of months, you should be careful in these situations so you don't get into the process in the first place. Because even though you may be vindicated when all is said and done, you will have had to go through that process, and harm can be done just by going through the process, just like people can be restored by having prevailed in the process. Let's talk then briefly about each of the levels of the ethics laws that affect you. And first of all, we have the statutes. Now, what you see pictured there is obviously law emerging from the legislature. And this is the wisdom of the legislature, which has Page 34 January 16, 2001 set up the legislative intent between the state -- or behind the state ethics laws. And in your package you have these laws, and I won't ask to you refer to them as we go, I'll just kind of highlight them for you. But basically what the legislature tells us is that their goal was to make sure that by these laws our public officials are independent and impartial, and that public office not be used for private gain. At the same time they tell us we don't want to discourage people that are qualified, active and prominent in their communities from being involved in public service. So you have a balancing act there. And quite honestly, I guess maybe at some point back in the beginning of ethics time we may have had somebody thinking and saying, well, gee, you know, on the one hand we have on this end of the spectrum the classic banana republic where government is for sale in all regards, and on this end we have a bunch of reclusive monks that are extremely pure of soul but have never interacted with the real world. And I think the legislature basically said well, let's try to draw a reasonable balance somewhere in between those two extremes. And these statutes are their effort at doing so. And I will say, our board has chosen to go further than the statutes have under terms of their restrictions. Now, what I want to first acquaint you with is under Section 112.3t3 of the statutes, which is referenced in your outline. And these ethics statutes are -- the salient provisions are in your graphic there. But these are the core prohibitions which exist in the statutes, which are very fundamental and you should just be aware of. And the first one is the solicitation or acceptance of gifts. The state law prohibits you from soliciting gifts if they are in any way -- if it's under -- or accepting of, if it's any way based on your performance of public duties. So obviously that prohibits a bribe. Another prohibition is doing business within one's agency. That is, you cannot engage in business relationships with the county. Now, there is an exception for that and that is if that relationship arose prior to the time you began elective office, Page 35 January 16, 2001 then that relationship or contract, if there is one, is allowed to run its course, absent any other violations in that situation. Unauthorized compensation. That is basically what we would call constructive bribery. And what that means is that you cannot accept anything of value if you know or should know, under the exercise of reasonable care, if it was given to influence the performance of your public duties. Salary and expenses. That's just merely a mention that when in the course of proper legislative deliberation you have to vote on something that may affect that. When it's obvious -- when it's properly before you as a board, that's okay. More importantly, misuse of public position. Basically that says you cannot use any information or resources available to you through your office which are not otherwise available to the general public to secure a special benefit for yourself or for others related to you. Conflicting employment or contractual relationship. That basically says that you cannot have an employment or contractual relationship if it will result in frequently recurring conflicts on matters that come before the board or that would impair your ability to be impartial and general as a member of the board. Disclosure, use of certain information, we've already talked about that. Prohibition on lobbying. The only thing you should be aware there is that for a period of two years after you leave the board, you cannot return before this body to lobby or advance a legislative agenda for compensation. COMMISSIONER MAC'KIE: I have a question on that point. Do we -- see if I can ask it generically. But does that prohibition extend to lobbying the agencies of this board, its staff and its advisory boards? MR. MANALICH: I am inclined to believe that it does. And, you know, the words in the statute are -- may not personally represent. And I've had in the past some limited discussion with Ethics Commission attorneys, and I'm inclined to believe it does extend that far. The agency is not just the governing body. COMMISSIONER MAC'KIE: In other words, if two years after Page 36 January 16, 2001 you're on -- after -- within two years of being on this board, we should not lobby Norm Feder for a roadway, we should not lobby Tom Olliff or Leo Ochs for a park, we should not lobby staff or committees, under Ramiro's opinion. MR. MANALICH: Well, what I would qualify, though, is the statute for -- particularly for commissioners does say before the governing body. That is the words used. So whereas agency is usually viewed more generally, here it's rather specific. COMMISSIONER MAC'KIE: So it's the opposite of what I just said, it's completely legit to do that, to lobby staff members? MR. MANALICH: Based on this particular statute, I think it only extends to appearances before the board. But I think it would be worthwhile to look a little closer and see if there's another provision that would extend it any further. CHAIRMAN CARTER: Gray area is what I'm hearing, Commissioner -- MR. MANALICH: A little bit on this one. I mean, not under this statute. Under this statute it says -- CHAIRMAN CARTER: This is very black and white, but -- MR. MANALICH: Right. CHAIRMAN CARTER: -- you're saying there may be other provisions -- MR. MANALICH.' I'd probably want to check a little further just to see if there's any other prohibition that would say as the agency as a whole. COMMISSIONER MAC'KIE: And the lobbying -- you can lobby on behalf of an organization as long as you're not paid for that -- MR. MANALICH: Correct. COMMISSIONER MAC'KIE.' -- within the two years? MR. MANALICH-' This says for compensation. CHAIRMAN CARTER: So if I was president of the Pelican Bay Property Owners Association after leaving this board and I came in front of this board on an issue, then it would be perfectly legitimate if it was in that two-year window. MR. MANALICH-' Correct, and then there was no compensation. CHAIRMAN CARTER: No compensation. MR. OLLIFF: And just so the board's aware, I think the issue Page 37 January 16, 2001 here is probably Commissioner Constantine at the last board meeting. And we did go out into the hallway, and we wanted to make sure that before he registered to speak and got up at the podium that there was a non-compensation relationship between he and the civic association, and that's the reason that he did make the presentation that he did. MR. MANALICH: Now, one of the things I would also, as a general theme throughout this presentation, I would introduce the term funny facts. And that is obviously all of these situations and opinions and conclusions are based on the straight up facts, you know, for instance, no compensation. But if there's any what I would call funny facts, that is, some indirect compensation, that could be a problem. But, you know, in the sense that if there's truly no payment, then no, it would not be. But again, you know, there are many situations where we have to make sure that we're dealing with all of the facts and there are not other facts that have not been, you know, disclosed that could affect the result. Because that's what the Commission on Ethics will always tell you, for example, when advisory opinions are requested, the opinion's only as good as the facts presented. CHAIRMAN CARTER: But just on your one issue, I'm thinking in the future, let's say any commissioner that sits here and leaves this board, now he wants to deal with an agency of government, of county government, we're saying that there's a probability within that two years after he or she leaves this commission, they cannot do business with government, Collier County government? MR. MANALICH: No, no, I think that what we're talking about here is lobbying before the governing body. The particular statute I'm referring to is you cannot appear for compensation before this governing body to advance a particular item. CHAIRMAN CARTER: But if I was an engineer and I left this board and I took a contract with the Department of Transportation of this county six months, a year afterwards, then that would not be considered an ethical violation? MR. MANALICH: No, at this point I'm not aware of anything extending it that far. Page 38 January 16, 2001 CHAIRMAN CARTER: And I'm only thinking in the future, if you want good people to continue to run for commission chairs, I would really not -- hate to see them put in that position. I mean, they're not here for a lifetime, they're here for a term or two or whatever their desire is, and they want to go back into the private sector, I don't want to see them penalized to say well, you can't have anything to do with the largest employer of the county. MR. MANALICH: And that to me is not a restriction at this point. CHAIRMAN CARTER: Other than they can't lobby in front of the -- MR. MANALICH: Correct, for compensation. Another area that you'll want to be aware of is voting conflicts. And basically the statute there prohibits you from voting as a member of this board on any matter which would enure to the special private gain or loss of you, a relative, a principal that employs you, a business associate. Any one of those you cannot vote on that matter and you have to file -- you have to announce the -- disclose the conflict and then file your memorandum, which I think you're becoming familiar with doing. COMMISSIONER MAC'KIE: Can we talk about that for a second? Disclose the conflict, what does that mean? I've been dissatisfied sometimes, frankly, in the past with board members' disclosure or lack thereof. Just -- is a statement that I have a conflict and can't vote on this sufficient? MR. MANALICH: No, I don't think it is. Basically the statute says such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting, and then within 15 days a memorandum to that effect. So I think a little bit more is required. COMMISSIONER HENNING: Can you explain the perception of conflict of interest, or it isn't a -- directly a gain or a loss, but there is some business dealings with the item that is coming before the board? MR. MANALICH: Well, interestingly, that particular provision is not found within the Chapter 112 ethics code. There's actually Page 39 January 16, 200t a Sunshine Law open meeting section, Chapter 286. But it does provide that in the event that any one of you believe that there is a perception that you will have a potential conflict in voting in any manner, you have the right to choose, if you wish to invoke that provision, to avoid the perception and conflict out. Because under the Sunshine Law, the typical requirement is that you must vote, you cannot abstain, unless you have. proper legal grounds to do so. And relying on that statute in good faith would be a proper legal ground. So that is another tool that you can avail yourself of if you believe that the public trust will be diminished because of a potential conflict which creates a perception. COMMISSIONER HENNING: Okay. And I think that we need to -- this board needs to discuss that. Commissioner Mac'Kie, Commissioner Coletta and myself are in business, and there is that perception out there that we don't want to see -- we want to show the public that we are in the best interest and not for private gain. COMMISSIONER COLETTA: And I think we both have done that to a large extent. I myself on November 21st, the first day of assuming office, have ceased doing all business with the county with my own firm. And I'll continue that role until that point in time I either sell the business or I retire from public office. And even though it was on a bid system I thought, like perception is what you said, and that's absolutely correct. I receive no business from the county. I gave up like, I think it was, $25,000 worth of business a year for the position. And I welcome that opportunity. COMMISSIONER MAC'KIE: I respect that so much, Jim. I mean, that's a real sacrifice. You just cut your compensation for this job in half. CHAIRMAN CARTER: That's right. And see, I'm back to this point again that I don't want to deter people that are sitting here who still have businesses who come for a time and serve, to go back to those businesses -- it would be a terrible thing if people are going to start trying to ride that train and grind them down because there is a perception that maybe because so and so walked into your shop or his shop, Page 40 January 16, 2001 they're getting a deal because he's a county commissioner. I mean, that is ludicrous. There's not enough money in this job to do what he just did. He's not here for that purpose. And I know it's building public trust, but I am really concerned about that, Ramiro, because I gave up my business -- I totally divorced myself from my business when I came to this job. And that was okay, because I'm at a point in my career where it's a different scenario. But there are other people that I would like to see take these positions over time. Why should they make that sacrifice? They're making a big enough sacrifice to come and sit in these chairs because they want to give back to the communities, little lone have to take some sort of hit along the way here that says, you know, there's something funny going on because they're in business. COMMISSIONER COLETTA: I think we've all entered into this. Even Donna Fiala had given up her position well prior to assuming this because of a possible conflict of interest. And so, you know, I think we're all in the same mindset. We went into this with our eyes open and knowing what we're doing. And I know Tom Henning has done quite a bit himself, just from my own experience before we got into the -- when we were running for office, to try to avoid these conflicts if he did receive office. And it's saying we go in with our eyes open. And I can accept it. MR. MANALICH: Again, the conflict -- the perception issue, that's one that you can make a choice on that. The law does not necessar -- does not mandate that. That's available to you if you believe it's important enough to cause you to conflict. But your only conflict basis is if it will -- the vote would result in special private gain or loss to you or your business, et cetera. COMMISSIONER HENNING: What's the ethics law -- or the Sunshine on the ethics? MR. MANALICH: 286.102. CHAIRMAN CARTER: But I guess to get down to where you're going -- MR. MANALICH: 012, I think. CHAIRMAN CARTER: -- our old county ordinance is the one that we'll really begin to apply, because the state ordinances we are probably all okay. Now we get to the county and that Page 41 January 16, 2001 becomes a different animal. MR. MANALICH: Well, it will get a little bit more interesting here. And I'll try to wrap up so we don't take too much more time on the state. Obviously financial disclosure, I just want to make you aware that -- and Sue Filson does a very good job of this, of coordinating with you to make sure that your appropriate forms with annual disclosure of financial interest are submitted. There's been some recent changes. I won't bore you too much with the results. But one of the things is that automatic fines do go into play if they're submitted late. There's obviously a hearing and appeal process if you're late, but obviously you want to avoid that. Interestingly, for gifts, you have -- if you're going to pay and argue it's not a gift, you must make any payment for the gift within 90 days of receiving it. And they're now determining that only a promise to pay for a gift is not a defense, unless it's in writing and enforceable in the courts. Probably one of the most interesting aspects of the recent legislative changes on the ethics laws has to do with disclosures and the local option, as it's known. And that is we have received communication, which Ms. Filson and I have discussed, indicating that very few of our appointed boards are now required to have the financial disclosure. Essentially the state has eased up on that requirement. And there is, however, a local option where local governing bodies can choose by ordinance to require these appointed boards to make these disclosures. Now that's a policy decision which probably either at this forum or maybe in the future we would look to you to provide some guidance on whether you wish to exercise that local option or merely impose upon your voluntary advisory board members the requirements of the law. At this point the only boards -- and Ms. Filson, correct me if I'm wrong -- but the ones I show that are going to be requiring the disclosure under the state view are the water -- Wastewater Authority, the Airport Authority, those two, we determine actually if they should be, not the statement, code Enforcement Board, certain specified employees and the Planning Page 42 January 16, 2001 Commission. So essentially all of your other advisory boards will not require, under the state's view, in the new law, the financial disclosure. You have the local option to require that of them if you wish but, you know, I think there's some policy determinations to be made there as to whether that's a good or bad thing. Will it discourage, you know, otherwise capable people because of, you know, additional requirements, or is it something that for openness of government is necessary? CHAIRMAN CARTER: Could we get, Ramiro, some input from what is going on state-wide on this, how other counties are dealing with this? MR. MANALICH: This was recently passed. We certainly could undertake that analysis -- CHAIRMAN CARTER: Or maybe FAC can help us a little bit with this, Florida Association of Counties. MR. MANALICH: Okay. CHAIRMAN CARTER: I think I'd like more information before I would get into any kind of a lengthy discussion on that, to see the pros and cons. Again, up front I don't want to discourage quality people from serving. Sue Filson has enough trouble getting people to volunteer to get on these boards. I certainly don't want to throw up a roadblock that stops qualified people from saying yes, I would serve on this board, but I'm not about to make a financial disclosure to sit on a board that I'm volunteering to do and there's no compensation so there's no personal gain here. I don't know, I can see the ones we've listed. Why? Because of the peculiarities that surround that. We have it there and it makes sense. But the others, I would like to have a lot more information. MR. MANALICH: Okay. COMMISSIONER FIALA: Along that same line, as far as gifts and financial disclosures go, many times we as commissioners are invited to functions, usually fundraising things for some social organization, Shelter for Abused Women or something along that line. And I've spoken to David about this just a little bit, but I'd like it to be on the record as well. They would like the Page 43 January 16, 2001 commissioners there, just if nothing else to show that we're interested in their organization or at least wanting to know more about their organization. Conversely, that we're invited to a luncheon to be a speaker or just to a banquet just to -- you know, just to say oh, one of the commissioners came and recognized us. But it cost $250 to go. Well, most of that of course is a donation to the organization itself. There's a little piece of it there, say $50, that actually pays for the cost of the event. I had to go to something like that recently. Somebody called me at the last minute. Her date had dropped out and she said would you go with me. And I said -- and of course she's been my friend for 20 years, but still I said, "1 don't think I can go now because I think that would appear as a gift." I said, "How about if I pay you for the meal?" She said, "Well, the rest I'm taking as a donation off my taxes." I said, "1 might need to pay you on this," because -- for the rest. I paid her for the dinner and for the function itself, obviously, even though it wasn't anything that I would ever be lobbying about or for. It gets kind of convoluted there. MR. MANALICH: I mean, a couple of things we're -- as soon as we get to the ordinances here we'll see, but when you talk about food and beverages, typically what's involved in these functions, if you go and if it's under the circumstance of law by the ordinance, you may be able to accept it, but you're going to have to report it on a form required to be reported if it's in excess of the state per diem rates; a form that's required to be reported. There's also a resolution in effect which allows you to bring to the board on the consent agenda a request to attend some of these functions and have the board pay for it if it can be reasonably shown to serve a valid public purpose to have you there. COMMISSIONER FIALA.' That's my second question. What I decided to do was -- my husband and I decided, actually, before I even ran for this office. Because there's been so many things that have taken place in the last few years, I felt that rather than request any dollars, I would just pay for it out of the salary that I Page 44 January 16, 2001 get. Now, I know that -- so we've set aside 20 percent of my salary, which is actually a pay cut for me from my last job, but 20 percent to pay for all of my own things, because I want to stay visible. Like for instance, I go to two Kiwanis clubs a week. $25 a week is just spent on Kiwanis. That's before I get into anything else. Naturally I have to continue to go to East Naples Civic Association and their banquets and their luncheons. When you start adding all of that stuff up, it's a lot of money. And I just feel it's unfair to ask the county for these things because I want to stay active in the community. So I've been paying for it out of my own pocket. Which is fine. I planned on doing that right from the start. But I was wondering -- MR. MANALICH: I think the local ordinance does provide perhaps some relief for you and that in regard -- and we'll look at in just a moment -- that if it's a type of function that fits within what the ordinance described, it's not considered a gift, then you can accept it as long as you disclose that you attend it. CHAIRMAN CARTER: I think you're going to take us there, Ramiro. I would agree, Commissioner Fiala, you've always been in Kiwanis, or I'm a Rotarian. That didn't change. I've always done that. I would never expect the county to pay for me being a Rotarian. But there are other public functions in which there's an expectation in the community for us to be there. And we've been -- you know, I think we really need to get on a list and do some rotation. But when you start looking at the major organizations who want us to celebrate their success with them on -- at the annual banquet, installation of officers, whether it be the EDC or the Chamber or CBIA or other functions like that. And I think we used to, under the old ethics ordinance, there was a liability there that it didn't cost you out of pocket to go to that, because -- and it might have been a very small amount. But when we went to zero gifts, that changed the picture. And even -- and I will take the Naples Daily News. They've been an advocate. There should have been a line item in our budget Page 45 January 16, 200t that dealt with these issues, because there's an expectation in the community that we be there. And they feel that we should have a line item and that we should do that so that we don't get into any kind of conflicts. So that may not take us into the charitable organizations like the heart ball, cancer ball, or whatever it is. I think that may become more of a personal choice. But if you went to the annual banquet of the NAACP or you went to, I'm going to say, the Chamber's annul banquet, one commissioner representing the board be there. If others choose to go then, you know, it's paid -- you pay for that. COMMISSIONER MAC'KIE: Well, I even think, for example, tomorrow, I think it's tomorrow, I'm going to go to the EDC's legislative delegation luncheon. $25, I'm going to pay for it and I'm going to ask for the board to reimburse me. Look for it on a consent agenda. Because I'm going so that I can have more of an opportunity for a rapport with the legislative delegation on behalf of Collier County. I don't have a question, I think we all ought to be there, and I think that it is appropriate on behalf of the people we represent to be there and that, therefore, it's an appropriate expense for the county to pay. I'm there on behalf of taxpayers, that's my job; therefore, I'm not reticent to have taxpayers pay. If I'm there on my own behalf, then I certainly should pay for it myself. MR. MANALICH: I think there are mechanisms in our existing framework here where if attending some of these functions can be shown reasonably to relate to your public duties CHAIRMAN CARTER: I think our point is -- MR. MANALICH: -- I think it can be done. CHAIRMAN CARTER: -- it should not cost you to sit in this chair to represent the public that you serve. COMMISSIONER MAC'KIE: And it does already in a lot of ways. And so actually -- you know, by reduction of salaries and income, as Jim and others have -- I have learned to live with, but not -- you know, we need not to be embarrassed if we're going representing taxpayers to have taxpayers pay for it. They elected us to do that. We need to be embarrassed if we go and Page 46 January 16, 2001 let, frankly, the Chamber comp. us on the deal. Because then it looks like I'm there on behalf the Chamber. I'm not there on behalf of the Chamber, I'm at the Chamber on behalf of the taxpayers, therefore, the taxpayers should pay for it. COMMISSIONER FIALA: I wonder if you are a speaker at that Chamber function. CHAIRMAN CARTER: That changes. And he will take you there. Because that's a different scenario. MR. MANALICH: Now, one thing I should mention about the statutes that do address you being a speaker there, it's under the rules governing honoraria, and that is always be careful not to accept payment for an oral presentation or for any writing itself. You can -- under the statute, you can attend and be paid the reasonable expenses of attending, but not for the speech itself or for any writing that you do. The gift law under the state -- and I'll wrap up the state so we can turn real quickly to the county ordinance. Under the gift law of the state, what you need to know is that it prohibits gifts in excess of $100 from lobbyists. Between 25 and 100, under the state law, the lobbyist has to report it. The other feature of the state gift law is that you have to report all gifts in excess of $100. Interestingly, by the way, the legislature wrote an exception; it says, however, prohibited gifts don't have to be reported, so you don't incriminate yourself. Just that little side note there. CHAIRMAN CARTER: Legislators always have a way of taking care of themselves. MR. MANALICH: One of the things that the statutes provide -- and this is a good transition for us into the county ordinances -- is that local governments can adopt more stringent standards of conduct. And that's what this board has recently done through two ordinances. And I'd like to now turn to our county -- CHAIRMAN CARTER: Before you go there, let me check with my court reporter and see how she's doing. Would you like -- thank you, ma'am. I think this is a good time. We're going to make a transition. Why don't we take 10 and give our court reporter a break. (Recess.) Page 47 January 16, 2001 CHAIRMAN CARTER: Hi, everybody. Ready to go, Mr. Manalich? MR. MANALICH: Yes, thank you. Welcome back, commissioners. We'll turn to the county ordinance part of the presentation on ethics. And what you see pictured on the screen before you is a fictional county commissioner being fawned over by lobbyists and being given an expensive gift. CHAIRMAN CARTER: Never happen in my life. MR. MANALICH: That's why it's fictional. But what I want -- the reason that's up there is because really the county ordinances are designed to deal primarily with this situation. And as such -- COMMISSIONER MAC'KIE: We need one of those just say no, circle with a slash through it on top of it. MR. MANALICH: There was a committee that was appointed by the previous board from the community, an ethics advisory committee, which came up with some recommendations that essentially recommended that a local ethics code be enacted. And the primary motivation for that was to toughen up the restrictions on gifts, have some reporting requirements for lobbyists, and create a local enforcement mechanism. And those were -- that was the legislative intent behind this first ordinance that you have in your package, 99-22. And essentially what that ordinance did was first and foremost it reduced the state threshold from $100 from gifts from lobbyists to public officials down to $50. Secondly, it created a lobbyist registration requirement with the clerk to the board's office, which is done on an annual basis. And third, it provided that county managerial employees, and that is essentially all employees at the division administrator level, are prohibited from coming back to lobby the county for a period of two years. But that only applied to those county managerial employees that were with -- that came with county government after the effective date of the ordinance. So it only applied to those who were hired after the effective date of the ordinance. So if one of the county manager employees which was here at the time of the passage of the ordinance, that person is not prohibited, if they leave county employment, from coming back and Page 48 January 16, 2001 interacting with county government. Now, the second ordinance was really I guess what you would call Gifts 2. And that's why we have the gift box again up there on the screen. And basically this was an ordinance specifically targeted to deal with more gift issues. The first thing that the ordinance did was it lowered the local threshold from $50. Remember we had gone in the first ordinance from 100 at the state level from lobbyists down to 50. This ordinance now took it down to zero. So it was zero tolerance for gifts from lobbyists. And it also created additional gift prohibitions and exceptions from the definition of what is a gift. Now, the reason that occurs is because conceptually, if you're basically going to have a zero gift type policy, then in order to prevent innocent situations from being wrapped up in that very sweeping prohibition, you have to create some reasonable exceptions. And the board chose to create those through the passage of 2000-58 in the ordinance. Now, in the -- what you should be aware of is the following exceptions of things that are not gifts and consequently under the local ordinance not prohibitive. The first one is gifts received where family or personal relationships clearly demonstrate that that is the reason for the gift rather than the business of the persons. So that is one that you can rely upon. Another one touches on -- Commissioner Fiala and some of the others had commented earlier about food and beverage accepted at different functions. And what it basically says is that if it's offered free in the course of a professional or civic meeting at which attendance is desirable because it will assist in the performance of public duties -- in other words, you're gaining valuable information, etc. -- or if it's food and beverage at such a function provided to all panelists or speakers, when you're participating as a panelist or speaker, it can be accepted. But it goes on to say that notwithstanding those provisions, you can only accept it if it goes -- if the value of the food and beverage is up to the state per diem. Now, that's not very generous, because the state per diem is currently three for breakfast, six for lunch and 12 for dinner. Page 49 January 16, 2001 MR. MANALICH: COMMISSIONER MR. MANALICH: county -- But then it also adds, if under circumstances beyond the control of the donee, meaning you, it exceeds the per diem, you can still accept it at that type of function, but you have to file a form indicating you attended the event. And that form is filed at the office of the county manager. So those are the circumstances where you can accept food and beverages at those types of functions. Now, you can get into, you know, subtle little issues in these things. Because, for instance, the words used there if under circumstances beyond the control of the donee, what that means is you can't go to a function and say everybody else is getting the rubber chicken, I'll take the filet mignon as a special order, and I can still take it. No, this says if under circumstances beyond your control, so you have to take whatever is offered to everyone else. COMMISSIONER FIALA: So let me just make sure that I understood what you just said. So the -- we're allowed for breakfast $3.00. And we go as a speaker to a Kiwanis Club and the breakfast is $10, through -- You can accept it -- FIALA: -- no fault of your own. -- and you report it on the form to the COMMISSIONER FIALA: So then we have -- for the other $7.00, we have to report it on a form. COMMISSIONER MAC'KIE: Yes. MR. MANALICH: Correct. And now, the form doesn't actually ask you to list the value. It says basically if you're told -- if you're informed -- which is the best, I mean, actually told exactly what it costs -- or you have reason to believe it may be in excess of those thresholds, the safe thing to do is to report it on the form. CHAIRMAN CARTER: I'll give you two examples, Donna. Tonight I speak before the -- an association of internal auditors, Southwest Florida, at their dinner meeting at Bonita Bay. I've been invited there to be the speaker. I have to disclose, what is it, $12.00 is what the fee is. If their dinner exceeds more than that, I have to turn in a form that just says I went there, I spoke, and that's the end of it. Page 50 January.16, 2001 Tomorrow morning I speak in front of the Chamber of Commerce, Wake Up Naples, and I don't know what their breakfast value is, but I will have to turn in a form on that. But I am the speaker. I have been invited there to perform a function as a part of the position that I'm elected to. So I think these are just clear-cut examples. When you get those, there's food, you just turn in the form and it says I followed the rules. MR. MANALICH: Now, there's a -- CHAIRMAN CARTER: Because there's not many breakfasts that are served for three or lunches served for six or dinners for 12, and of course that's one of the issues we've got on the legislative agenda. COMMISSIONER FIALA: And it's mandatory you're there -- CHAIRMAN CARTER: Mandatory that you're -- COMMISSIONER FIALA: -- you're serving your community. CHAIRMAN CARTER: Right. And all you do is turn in the form that says I've been there, done that, and this is -- we don't even have to calculate the difference is what I'm hearing you saying, Ramiro. You're just saying that we were there. MR. MANALICH: Correct. COMMISSIONER FIALA: I'd like to request 35 of those for -- CHAIRMAN CARTER: Well, yeah, you get a stack of forms and you turn them in. I mean -- MR. MANALICH: Yeah, one in -- CHAIRMAN CARTER: -- my associate turns them in each time, they go down to Tom's office, and we have complied with the ordinance, we have complied with the rules. And it's just a matter of doing that, so anyone that wants to come in and look, they can check the dates I was there, and that's what I did and what you did. MR. MANALICH: And remember, you also have the other option which is you can always for certain functions, if there's some degree of doubt, you can have the other resolution where you can present to the board the reasons why it serves a public purpose for you to be there, and the county can actually also pay for you to attend. You don't have to do that, it's just another option that we've talked about. Page 51 January 16, 2001 Now, in relation to this also, the ordinance recognizes that unsolicited advertising or promotional material of a value less than $50, as well as gifts given for participation in a seminar which are less than $50 and given as a matter of course to all the attendees, that can also be accepted without concern, and you don't have to report that. It's just the food and beverage one that requires the reporting. MR. OLLIFF: Ramiro-- CHAIRMAN CARTER: Let me ask you this question. This is outside of county business. Let's say that the National Association of Bird Watchers invites me to speak in Minneapolis on how to provide leadership in their organization. Now, I'm being asked to go and speak on my professional skills prior to what I ever did as a county -- what I did prior to being a county commissioner. This in no way affects that, does it? Because this is outside income, those people will never come in front of me as a commissioner, I'm going out and carrying out in private practice. No more than if Commissioner Ma¢'Kie did some work for a company which had no relationship here. COMMISSIONER MAC'KIE: They're not lobbyists. CHAIRMAN CARTER: They're not lobbyists. MR. MANALICH: Yeah, the -- CHAIRMAN CARTER: We don't have to do anything -- MR. MANALICH.' Exactly. CHAIRMAN CARTER: Now, there's another part of earned income on a state thing at the end of the year that we have to disclose that, but it has nothing to do with county business. You as a professional can attend this seminar. No problem, as I understand. MR. MANALICH: Yeah, I think you're okay there. Good distinction. COMMISSIONER HENNING: Could it be -- what would their opinion be on the piping plover on Marco Island, though? CHAIRMAN CARTER: Well, I'm not talking about that. I'm talking about professional leadership skills that need to be applied in their organization. I'm not talking about the technical or professional scientific data that -- whatever they deal with. I never get into those subjects. I'm only talking about leadership Page 52 January 16, 2001 skills, management skills, motivational skills. That's what I'm talking about. I don't care whether -- what it is. It could be the national association of gas pump operators. It doesn't make any difference to me. MR. MANALICH: Now, one other thing that the 2000 ordinance did with regard to gifts is it prohibited gifts up the chain from public officials to other public officials, and from subordinates to superiors. So for example, absent a special occasion, which is listed as such things as marriage, birth of a child, illness or retirement, the county manager cannot give gifts to the Board of County Commissioners as they're being the superiors. Likewise, I cannot give a gift absent those circumstances to Mr. Weigel, because we are both considered public officials and I'm subordinate and he's the superior. So those are essentially the provisions of the 2000 ordinance. If we can go to the next frame, this dire looking picture is up there only for one reason and that is not for intimidation but rather as a reminder that under this scenario the stakes are higher. Because although the committee that you appointed, the advisory committee, found that a local enforcement mechanism was preferable, what that really means is that we now have jail penalties for these violations, which feasibly could be imposed in a court of law. The ordinance is enforced before a judge. So you just need to make yourselves aware of that. Because under the typical complaint process with the Commission on Ethics under the state scheme, there are only civil penalties; penalties affecting your status as a commissioner, fines but no jail. Here under the local ordinance, we do have jail penalties. Now-- CHAIRMAN CARTER: That would be carried out under the state's attorney? I mean, if someone filed against -- MR. MANALICH: That's correct. CHAIRMAN CARTER: -- you know, a sitting commissioner, then -- MR. MANALICH: Yes, the state attorney would prosecute that. CHAIRMAN CARTER: -- the state attorney's office would be Page 53 January 16, 200t the one that would do that. MR. MANALICH: Now, if we can turn to the next topic, basically one thing I just want to make you aware of; it does not affect you directly, but that is there is another level of rules that affect your county employees. CHAIRMAN CARTER: Before we go there, can I ask one other quick question? What about people who are elected to -- I'm going to take the new taxing authority in Pelican Bay; they went to a dependent district and those people are elected to those positions. They're under the same ethics ordinance that we are? MR. MANALICH: Well, this basically applies to public officials, and we have defined public officials, if I can turn to the definition just for a moment, as elected officers, advisory board members, county managerial employees and the county attorney. CHAIRMAN CARTER: So if either they're elected or appointed, they would be under the same -- MR. MANALICH: Elected officer I think is limited. Let me check. But it's limited only to the Board of County Commissioners. CHAIRMAN CARTER: Okay. MR. MANALICH: So I don't necessarily-- David, I'd invite your comment. I don't think it reaches them. MR. WEIGEL: I -- COMMISSIONER MAC'KIE: You know, for school board, for example, they're not subject to our rules. MR. WEIGEL: No, they are not. And Mr. Carter is certainly correct, that this is a dependent district. It's a very -- a fairly independent dependent district, elected and not appointed by this board. So I tend to think that they probably don't come under our ordinance, but we'll have to look at that again very closely. CHAIRMAN CARTER: But they would still fall under the state. MR. WEIGEL: Absolutely. CHAIRMAN CARTER: Thank you. Okay. COMMISSIONER HENNING: I have one question on the county's ordinance before we move on. I have a friend who is a Page 54 January 16, 2001 lobbyist. For a long time we've been friends. And we used to get together for breakfast or lunch, and either he would buy my lunch or I would buy his lunch. And right now we're in the area that we split the check evenly. Do I have anything to worry about if we go back to our old practice of one person buying one week, the next person buying another week? MR. MANALICH: I guess several comments on that. First, under the state law, assuming the lunch is under $100, which most likely it is, obviously, no, there should not be a problem. Now, under the county law there is the exception for it is not a gift if personal relationships clearly demonstrate that that is the reason for the item of value being received. So I think you could in good faith, given the type of scenario you've described, say that there would be no violation of the county ordinance under that defense. But then again, we reach into the issue of perception and, you know, potential exposure to a complaint being filed and having to respond to it just to dispel that. And frankly, the better advice may be simply to each pay your own bill there. COMMISSIONER HENNING: Okay. MR. MANALICH: Okay, just in passing, as I was going to mention, the human resources policies and procedures were promulgated by the county manager having provision a code of ethics. And that applies just to employees. And what it says is basically that they are not to accept anything of value if it is intended or gives the appearance of rewarding or influencing the performance of public duties. And Mr. Olliff I know has sent memos at Christmastime and other times reminding employees of this prohibition. Lastly, if we can turn to the next frame, I want to talk about this particular resolution, No. 95-632. And this is a resolution setting forth the policy of the board in regard to providing a legal defense and paying legal expenses of county commissioners, staff and advisory board members. And I bring this up -- Debbie, if I could turn to the next one -- because I want you to view it kind of as you see in the picture here, as kind of a partial safety net for you. If all else fails, if I was mistaken in some way or if you didn't Page 55 January 16, 2001 hear a particular part of the discussion, something went wrong and a violation was alleged, you do have the ability to have your legal fees paid for by the county in defending those allegations. And that's provided for in this resolution. But essentially what you have to do is you have to make sure that you follow the steps required in the resolution. And ultimately what it involves is notifying the county administrator and county attorney that a complaint has been lodged, and allowing them to make an initial assessment, and then bring the item to the board for the board to determine if a legal defense will be provided up front or if a wait and see attitude will be adopted and reimbursement if you prevail. So that is an available mechanism so you're not completely alone in case of a misstep off the ethics high wire. At this point, I think that really is the survey of the ethics law that I wanted to give you. If you have any further questions, I'd be happy to answer them. COMMISSIONER HENNING: I'd like to talk about the code of conduct of county employees. And I know this is under the privilege of the county manager. Are county employees allowed to accept Christmas cookies at Christmastime? MR. OLLIFF: No. And I think if you want to take it to its furthest extent, it's probably not as much a part of the county's HR policy as much as it is backing up Ramiro's analogy to the next level. The county ordinance would even make, if you want to get very technical about it, the acceptance of a Christmas card a violation. And I think as a result of that, I would suggest to the board that there's probably some tweaking that would be recommended in terms of that ordinance, because it's the acceptance, it's the act of acceptance that is prohibitive. And so as we've gone through the examples, to open the card and the envelope is to accept the card, because you cannot return it at that point. But you had no idea what was in the envelope when you went to open the envelope. So I think there are some just minor adjustment that probably needs to be made to that ordinance in order to make it a little more practical. But in terms of acceptance of cookies, Page 56 January 16, 2001 those kinds of things, those are strictly prohibited. And we in fact this year returned directly any and all food related items that were provided to any and all departments that I'm aware of directly back to the center. CHAIRMAN CARTER: We got a memorandum that I know we added to people, we just told them, don't send us any. MR. MANALICH: Now again, employees have the same exceptions to the gift law, although I don't think, as Tom indicated, they necessarily address all of these situations, but they do have the same exceptions about personal and family relationships or attending functions where it serves a public interest for them to be there or be involved to either speak or panelist or whatever, and then they have the same provisions there. So there are some circumstances where some things can be accepted. COMMISSIONER HENNING: Let me share a conversation that I had with a constituent, a school teacher. A librarian came and (sic} speak to the kids on a certain subject and they were really impressed and they were -- the children were having a field trip the next day. And the librarian felt that she needed to decline the invitation because they were going to The Registry and having a lunch after that. And I feel that we're going just a little bit too far in the incidence of that. And I would hope that we can, as a board, do something to where our employees are a little bit more comfortable in those situations. And I understand in the administration side the administers have to be very careful of how they conduct themselves in the public's eyes, because they're a decision-making people. Now, a librarian is not a decision-making person. CHAIRMAN CARTER: I guess in that case it's carrying out the function of the job to ask you to participate in something that's related to the job for the benefit of the public. I wouldn't have any problem with that, Ramiro. MR. MANALICH: I think -- in that situation, I think you would be covered by food and beverage except as part of a group function where attendance is desirable because it's interrelated with your public duties. Again, if it exceeds the per diem, the Page 57 January 16, 2001 form has to go to the county manager, in that scenario. But, you know, there's a lot of permutations of this, and there are some that are not covered by these exceptions. CHAIRMAN CARTER: Well, what I would hope is that through this process that our administrators and the whole management team would encourage our people that when they have a question like that, rather than turning it down, to go ask the question and get that resolved real quick so they understand that we're not tying their hands but there is a procedure to go through so they can participate. MR. MANALICH.' And I will tell you, to the credit of Mr. Olliff and his staff, we receive many questions on a routine basis from them, and I think they're being quite conscientious about it. MR. OLLIFF: It's not to our credit, we just don't understand. CHAIRMAN CARTER: Well, I think it's a difficult period for us, and we all would rather err on the side of being conservative and not doing it versus doing it and finding out that we have done something that was improper. So we're really trying -- to our listening audience, is that we're really trying to do it right, but at the same time we want to provide the services. We want our people involved with the community. So we -- I would hate to see these things get in the way. Because a librarian certainly isn't going to make any decision about anything that's going to affect the operation of the library because she went on a field trip to help some children better understand something that was sponsored by somebody on the outside. It just -- it's inconceivable to me that someone would misconstrue that. But it happens. And I would hope that it doesn't happen, because we're really trying to get the job done right. I know we're behind -- MR. WEIGEL: Thank you. Well, I appreciate that. CHAIRMAN CARTER: -- I apologize. MR. WEIGEL: I just -- no, that's fine. And I'll mention, as I said at the beginning, we're going to be talking, coordinating with Tom Olliff with the division administrators, the departments, so that they get the message. We probably won't talk to them Page 58 January 16, 2001 about quasi judicial stuff, the librarian and that group, but we can certainly talk about the other aspects that we can assist them with information-wise. Our next topic -- COMMISSIONER MAC'KIE: Before you leave that, I've got to make a little plug for something that I have been trying to get our county manager -- and I know he has been investigating this, but something that I've been looking at for quite a while is a program called Communities of Character. And it is a training program basically for character education that cities and even states -- it's specifically oriented toward government. It's not cheap. I've done some fundraising that we could get some support on having that -- having that education program brought to our county. I know the Sheriff is doing it with his employees. I know the City of Naples is considering doing it. And it's my goal to have that implemented here and to have us designated as a community of character. And there are real -- there are specific actions required for that. But all of that, it's as simple as, you know, the Sheriff's example is good, is every cop, you know, is offered a free donut, and that's just sort of a caricature, but do we think that -- does the cop know that the donut might be offered with the expectation that you're going to hang around more at that 7-Eleven? You know, just to get you thinking about those kinds of things. And I really hope that -- and it's on my list of things to talk to Tom about, but I hope you guys will be interested in that community of character education. CHAIRMAN CARTER: I really support that, Commissioner Mac'Kie. I know the Sheriff went through that process, I know the president's forum of Southwest Florida had that same person speak to the presidents and COE's of major companies here maybe six months ago. I can't remember the time. And I believe, Tom, that you were a part of that meeting -- MR. OLLIFF: I was. CHAIRMAN CARTER: -- where you had an opportunity to hear what it's all about. And I think it's a commendable program. And I would hope that governments and businesses would -- in Page 59 January 16, 2001 this area would embrace that, as the Sheriff's Department has, because it does so much for character building in the community, gets everybody involved to better understand what character is all about, and the tremendous productivity that comes out of groups that go through it, absenteeism goes down COMMISSIONER MAC'KIE: Workers comp claims go down. CHAIRMAN CARTER: Go down. I mean, it has amazing effects on it. So I would completely endorse anything that we could do to perpetuate that program here. COMMISSIONER MAC'KIE: Just didn't want to miss a chance to plug it. CHAIRMAN CARTER: I thank you for doing it. MR. WEIGEL: Just to mention, our next speaker, long-time Assistant County Attorney Margie Student, will be talking about ex parte communications. Recognizing that the clock is continuing to move, I've asked Margie and the following speakers to expedite somewhat. COMMISSIONER MAC'KIE: Hey, we've ordered lunch. You guys are the ones that -- MR. WEIGEL: Six dollar lunch, I'm sure. But the fact is, is that we're here as long as you'd like us, but we will wrap it up a little more quickly, if you prefer. Or we can hold out other opportunities to continue this even over to the back end of a board meeting, which you probably wouldn't want to do. But with that, Margie, could you tell us a little bit more about the ex parte MS. STUDENT: Yes, thank you, David. Good morning, commissioners. For the record, Margie Student, assistant county attorney. And I'm here to talk about ex parte communications and quasi judicial boards. And there's some legalese mumbo jumbo right there in the title. Ex parte means from one side, or one-sided communication. Quasi judicial means sort of like a court. And when you as a commission sit there and hear quasi judicial matters, the five of you are sort of like a panel of judges. And that's the reason that we have the Jennings Rule. And in the interest of time, I am Page 60 January 16, 2001 going to go through quickly. The first item on my outline is background. And I give you a little history of the Jennings Rule that came out of Dade County and the ex parte communication involving a variance over there. And really, the rationale for the prohibition -- or not really prohibition, but the presumption that a problem arises when there's an ex parte communication is to assure that the proceedings before the quasi judicial board are fair and impartial, and to also provide a forum in which all sides of an issue can be presented, debated and discussed prior to the final decision being made. Jennings was decided in 1991. And in the wake of Jennings, the legislature acted. But before we go to that, I just want to touch on the difference between a quasi judicial hearing and a legislative matter. A legislative matter is the establishment of policy. And the body has broad discretion in making its decision. Examples of legislative matters that come before you in the land use area include land development code amendments, comp. plan amendments and broad county-wide rezonings. In a quasi judicial action, it's the implementation of policy which is already being established by law -- by the application of the law to a given set of facts. And examples that you see here every other week on that are variances, conditional uses and site specific rezones. We see them not only in the form of straight rezones, but also rezones to PUDs. And as you're aware, there's a set of criteria that are set forth in the code and also in the staff report where staff does their analysis of whether or not the project meets those criteria. And that is the application of a set of facts to the laws that govern that particular item. The Florida legislature responded to the Jennings Rule by passing a statute. It was found in 286.0115(1}. And the legislation removes the presumption that ex parte contact is quasi, and quasi judicial matter is prejudicial. And it provided that local government could pass a resolution or an ordinance waiving the Jennings Rule so long as the government adopted procedures require that any ex parte contact be disclosed prior to the final decision-making on the issue. Page 61 January 16, 2001 And in fact we did that by resolution that we adopted in June of 1995. That was Resolution 95-376. And I think at various times our office has made copies of this resolution available to you. And it deals with different types of contacts that the board is involved with in quasi judicial matters. And the first would be oral ex parte communications. And again, those have to be made part of the record prior to the final decision being made on matter. Examples of oral ex parte communications might be telephone calls or meetings. And in -- the ideal situation would be to have a file folder set up and divided -- have a folder in the larger folder for each agenda item, and then whenever you've had a meeting or you've had a telephone call with someone, that you jot down with whom you had the meeting and the substance. It's the substance that has to be disclosed. So maybe if the person expressed a concern about traffic impact, that could be listed. Or if it was an environmental concern, that could be jotted down. And then it could be brought to the board meeting, so if anybody had any further question on it, they could look at it. Also, the -- a resolution in the statute deals with written communications. That's a little more simple because you receive either a letter or an E-mail, so it's a little simpler to bring that to the meeting and have it available for any member of the public that might wish to examine it. And you could have a similar process where you would have a file folder divided up into separate sub-folders by agenda item and put the written communication in there and have it available at the meeting. COMMISSIONER MAC'KIE: Marjorie, I just want to interrupt you to say -- MS. STUDENT: Sure. COMMISSIONER MAC'KIE: -- you know, there's got to be an easier way than that for us to comply with this. You know, I think that there are easier ways. You know, for example, I don't understand why at every -- at the beginning of every board mee -- or every quasi judicial when we all say I've met with A or B, you know, we need to say I met with Joe Smith who opposed the project and I met with Jim Jones who supported the project. Page 62 January 16, 2001 And that's adequate, I think, because that tells who and what was generally discussed. And then the lawyers in the room have the right to cross-examine at that moment, and they can do it or not. But on this business about E-mail and letters, I wish that there were just a statement on the agenda or somehow automatically put into the minutes that here's where our E-mail is kept, here's where our Gorrespondence is kept, all of that is available and is hereby made a part of the record. Gan't we do something like that instead of all of us Goming with our little file folders? MS. STUDENT: I think we Gould. And as I said -- I didn't say that we had to do it, I said in a perfect or the ideal. And we're here to help in any way we Gan to see that the disGIosure is made to meet the intent of the law. That's not to say that you have to do that, that was in the ideal situation. And as I said, we're here to -- and I think that is a possibility we could look into further. Because what's important is that the public has access to it and they know the contents and the substance of it and that they have an ability to rebut that or present any arguments that they wish to at the public hearing before the final decision is made. And I think, you know, those are the key items. COMMISSIONER MAC'KIE: And so for this -- for my idea to be meaningful, it would have to be that here is, for example, this standalone computer, that anybody who wants to come up and see -- read all of our E-mails before a meeting to see what our communication was on that sub -- I mean, it has to be meaningful disclosure so that at the meeting, if they have something they want to rebut, they have to be able to do it. We can't just sit at the meeting and say our E-mails are in the computer, oh, and the hearing's right now so shut up. You know, we would have to -- MS. STUDENT: I think there would have to be advanced notice. COMMISSIONER MAC'KIE: Advanced notice, and advanced notice of our correspondence files. Couldn't we just somehow make a blanket notification of those two things and then we're done? Page 63 January 16, 2001 MS. STUDENT: I think it's something we could certainly look into and probably come up with the mechanics of it; you know, not obviously today in this meeting, but very soon. And what we might be able to do also is to scan any other correspondence besides E-mail into the computer as well. And so that would be available, and also any expert opinions, because they're covered by the law and our resolution as well. COMMISSIONER MAC'KIE: Well, let's -- I'm not suggesting we start scanning documents, then, because then we're going to have to triple our staff. I'm just saying let's just have our E-mail available and our correspondence files available and let there be adequate public notice perhaps in the notice of the meeting, we advertise that, David, or somehow so that it's meaningfully disclosed, but thoroughly. MR. WEIGEL: You're absolutely correct. And anything we do that enhances what we are already doing is to the good. But for commissioners or planning commissioner members or the EAC commission members, any of those that have these quasi judicial type of determinations, if they say well, I've talked to several people about this, that's really not good enough. And so we do need some specificity. If we don't have at least a degree of specificity, we're at larger risk for the decision that the board makes to not sustain a challenge. And that's where we all want to do -- be is to do it once and not have to come back and do it again. COMMISSIONER MAC'KIE: And I just -- the only reason I interrupted is, you know, I know these board members, they are diligent. You tell them the best way to do it is to have a little file folder with every agenda item and every slip of paper and every Post-It note, that's what they're going to show up with, you know. And I think that is unnecessary if we could be more creative, like I said, in advertising with the notice of the meeting here's how you can see written and electronic communications that may have been received ahead of time, and we disclose that we got them or we didn't. And then at the meeting I understand we need to be better than just saying I talked to people at the Chamber of Commerce about this, we need to say I've talked to the Chamber reps who Page 64 January t 6, 2001 supported it or opposed it. But is just a general statement like that adequate, they supported it or opposed it, or am I supposed to say well -- MS. STUDENT: Let me just go into a little detail, if I might. The law says the substance, so the substance could mean that -- you know, if it's a traffic issue or one of the salient issues that might be considered in making a decision. But I want to advise you of a local court opinion that we have here that it's at the bottom of the outline. It was Hoffman versus City of Marco. And what happened there, it was a boat dock matter, and the boat dock went to their PAB and then the appeal went to the city council. And what happened was the city council made their disclosure, but they didn't state -- they just said, you know, they talked to some people and they didn't fully state the substance. And the court held -- now, bear in mind, that's just our local circuit court -- held that that was okay, that they followed the resolution and the law because there was a burden on the attorney that once that small of a disclosure was made, that they had the duty to inquire further. Now, the problem with that is that's just our circuit court here in Collier County. If we had a case like this that went up to the Second District Court of Appeal or maybe even the Supreme Court, they might say that's not enough. So what we want to do is come up with, you know, the protections that we need so as we've stated in other presentations here this morning, we have enough where it puts people on notice of what they need to do and we don't have to go through the whole process of defending a case up and back down again. And I think that Commissioner Mac'Kie's suggestion is very good, and it's certainly something that I'll be happy to work on with the board to come up with a workable solution within the parameters that we have under Jennings. COMMISSIONER MAC'KIE: And David, that's -- you know, in my judgment that's your job to get us those mechanisms to tell us how -- what we'll -- here's your recommendation on how we comply with the policy. Because I'm sorry if I'm overreacting to the thing about the -- Page 65 January 16, 2001 MS. STUDENT: Again, that wasn't to say we needed to do that. That was just in the -- that was just the ideal. That was by no means to say that -- MR. WEIGEL: We haven't seen the ideal addressed in court or mandated -- MS. STUDENT: No. MR. WEIGEL: -- in court. But we do know that the word reasonable shows up under Sunshine Law, Public Records Law and the ex parte communications. And we think that reasonably probably -- that we would be of assistance in a reasonable way to enhance what we're doing a little bit. And this is an opportunity to tell all the commissioners that we're looking forward to provide some choices for you that I think won't be too difficult to do as far as staff or you all, as far as that goes. CHAIRMAN CARTER: Well, I would look for a system that is reasonable, that we can put this material in, and keep in mind that the day of issues coming to us, we get people handing out stuff and not to be confused with what was in the file before we even came to the dais and we had the discussion on it. And frankly, I really don't appreciate a lot of stuff that's handed to me the day that the issue is brought forward, because I don't have time to go through it, I don't know what the substance of it is, I don't know how it was built. So there's got to be some consideration to all of that when this takes place. MR. WEIGEL: That's a very good point. And for the newer commissioners to this board, when we have had petitioners come before this board on quasi judicial matters and they bring in more documentation than what I have right here and submit it to the record and bring it over to our court reporter, I always make a point to say to the committee -- to the board, as well as for the record, that petitioners' submitted materials which have not been before this board, have not been reviewed by this board, are merely submitted technically to the record. And we identify those things so that if we do run into some kind of an issue later on, it will be very clear that this record and this board did not really have these things to use for their decision making. COMMISSIONER MAC'KIE: The only thing, as you develop a policy -- because I think this is a place where we need some Page 66 January 16, 2001 improvement -- that I wish that the policy could also include some opportunity for the attorneys in the room to acknowledge adequate disclosure, somehow, you know, agree that they've been advised and that -- because I worry that they're going to raise they didn't have an adequate right to cross-examine. MR. WEIGEL: Right. We always run the risk of that without accentuating that as an issue for them to comment on. It's one of those things we'll have to look at carefully, and we can. MS. STUDENT: And I think it will take a collaborative effort, but we will come up with something. Thank you very much. MR. OLLIFF: And keep in mind, we're not the only jurisdiction doing this. So, I mean, with David's blessing, maybe we'll work with him and do some surveying of some other communities to see how they handle the same issue. MR. WEIGEL: Our next victim is -- we're going to have a duo here. Ms. Heidi Ashton and Jackie Hubbard-Robinson are going to talk about tourist development tax and some examples. COMMISSIONER MAC'KIE: And out of curiosity, how did this come to be on the county attorney's workshop agenda today? MR. WEIGEL: This one? COMMISSIONER MAC'KIE: Yeah. MR. WEIGEL: We just thought that particularly for the new commissioners, that they would want to know a little bit of what this thing is and just some of the basics, really. COMMISSIONER MAC'KIE: I'm glad we're doing it. Just curious. MR. OLLIFF: We actually have a separate TDC workshop for you as well that sort of talks about the operational end of it, to talk about the history, what's worked well, what hasn't. I'll let the board hopefully give us some policy direction in that regard as well later. MS. ASHTON: Good morning, commissioners. I'm Heidi Ashton, assistant county attorney. I've been an assistant county attorney for eight years, and I currently work on real estate and eminent domain; however, I've spent four and a half years working on tourist development tax issues. So today I'm going to talk to you about tourist development tax issues, what the tourist development tax is, how it's Page 67 January 16, 2001 calculated, how it's determined, how the funds are used once collected, and go over some questions at the end that I hope will assist you in performing your duties as commissioner. And at the second half, Jackie Hubbard Robinson will be talking about current issues. Let's begin with what the tourist development tax is. It's a local option tax, and as a tax it's required to be authorized by general or special law. And in this case it's authorized by Section 125.0104, Florida Statutes. We've also adopted an ordinance, Ordinance 92-60, as amended. In your package, I've provided a copy of the statute, and I've also provided a copy of the ordinance as amended. But rather than giving you the ordinance and all the copies, I've copied the codified version from the Code of Laws and Ordinances, which is your big book you have probably sitting on your shelf. And the section is Section 126-81 of the Code of Laws and Ordinances. Next, who pays the tourist development tax? The tax is a tax for the privilege of renting or leasing living quarters or accommodations in a hotel, motel, apartment, condominium, mobile home park or recreational vehicle park, for a term of six months or less. And the person that actually pays the tax is the lessee, and that is paid to the landlord, and the landlord is required to submit the tax to the Collier County Tax Department. What is the amount of the tax? The amount of the tax is a percentage of the dollar or fraction of the dollar for the rental or lease. For example, if for a monthly rental of, say, a condominium, if the rent were $400.71, the amount that would be subject to the tax would be rounded upwards to $401. And it would be based on the percentage of the tax that the county collects. Collier County currently collects -- it's a total of a three percent tax, but the -- in 1992, the county adopted an existing two percent tax, and then in 1995, we adopted an additional one percent tax, which became effective in 1996. So currently we have a three percent tax that's being collected. The statute authorizes -- COMMISSIONER MAC'KIE: Heidi, there's not a deadline, those -- none of that is set to Sun -- is scheduled to Sunset at this Page 68 January 16, 2001 point? MS. ASHTON: No, there was a possibility it would Sunset, but the issue went back to the voters for like an informational -- it's called a straw vote of the taxpayers, and that was a year or two ago. I'm sorry, my time is a little skewed. It was last year? Okay. I'm working too hard. But there is a possibility of going up to a six percent tax. We've exhausted the three percent that's available under Section 125.0104, Subsection (5)(A}. If we were to go any higher, it would have to be for like a sports franchise facility or for a convention center, just, you know, for your information as we go forward. COMMISSIONER MAC'KIE: I'm sorry, we can raise to six per -- we could raise -- we could add up to three without it being for sports or convention? MS. ASHTON: We have a current three percent. We've reached our maximum. We can do an additional one percent for a sports franchise facility. CHAIRMAN CARTER: We can't add across the board -- otherwise, we can't add another penny or two and use it across the board. It has to be for a specific facility, as I understand it. MS. ASHTON: Correct, if we're to go beyond three percent. CHAIRMAN CARTER: Yeah. MS. ASHTON: Except for high tourism counties, they can enact an additional one percent. But we don't qualify as a high tourism county. So at this point if we were to go any higher -- CHAIRMAN CARTER: Would you say that again real loud and ~clear? We do not qualify as a high tourism county? MS. ASHTON: That just shows you how much more and larger populated areas even, and we collect as much as we do. COMMISSIONER MAC'KIE: Well, that's news to me. I thought we could add a penny if we wanted to for promotion, for example. MS. ASHTON: No, we're up to three percent. And that's as high as we can go. Only one percent for possibly a convention center or another one percent for a sports franchise facility. CHAIRMAN CARTER: Are there other options in that list? Would you have a list of possibilities you might give to us Page 69 January 16, 2001 sometime, Heidi, so that we could -- maybe that's the only two choices -- COMMISSIONER MAC'KIE: Is that it? CHAIRMAN CARTER: -- but maybe there are others. MS. ASHTON: Really, those are the only two choices. There are two kinds of categories, but I'd be happy to provide you a memo or something that would outline the other uses and the other potential one percent. There might be other types of taxes out there, but as far as the tourist development tax, we've reached our max under the three percent. COMMISSIONER MAC'KIE.' I just can't help but mention this, another plug, if you haven't been to a web site called Floridagrowth.org that Mr. Weigel -- I'm sorry, Mr. Olliff sent to all of us recently, it's the comprehensive planning growth management study on the state level, go, because it's extremely interesting. But one of the proposals that might come out of that committee is that the infrastructure be an approved use for tourist tax. CHAIRMAN CARTER: You're right, Commissioner Mac'Kie, you really need to track that. Two things: Make sure what they do does not negatively affect what we're trying to do in our Growth Management Plan. So you've got to watch as this thing evolves. So far, what I read, we're in concert with some other plusses, if they stay on track. But you've got to watch for the wiggles that come at the end of these things. So I would encourage everybody to keep track of that. MS. ASHTON: Okay, the next question is can the tax be increased or decreased? And if it were, it would have to be done by an ordinance amendment, and it would require a four/fifths vote of the Board of County Commissioners. The next question is how may tourist development tax revenues be used? The taxes have to be used as expressly authorized by the statute. And our governing statute is Section 125.0104, Subsection (5)(A) of the Florida Statutes. And we currently look at that section, as well as our Ordinance 92-60, as amended. Our ordinance can further narrow what's allowed in the Statute, but we can't expand what's in the Statute. We have generally four categories of uses, and I've Page 70 January 16, 2001 paraphrased them for ease, for if you want to look at the full text, you can look at the copy of the ordinance and the statute that I've provided to you. But the first category is to finance the acquisition, construction or operation of museums publicly owned or open to the public. The second is to finance the acquisition, construction or operation of fishing piers publicly owned or open to the public. The third is to finance beach park facilities and beach improvement and maintenance activities. And the fourth is to promote and advertise county tourism within the State of Florida, nationally and internationally. And that category also includes special events. You may have heard in the past reference to guidelines that the county has. In 1999 we repealed county ordinance adopted guidelines for the promotion and advertising category, so we currently have no board adopted guidelines governing those. And guidelines aren't required to be adopted by the statute; that was something that the county had for administrative purposes. But we do have beach guidelines that were adopted in 199:3. They were adopted by motion of the board, as opposed to an ordinance which makes it law or a resolution which expresses policy. I've attached a copy of those guidelines in your package for your reference. One of the things the guidelines did is it created the requirement that items go to the City of Naples beach committee prior to going to the Tourist Development Council. But those are not binding on you. It reflected the policy back then. And you can either continue with that policy or not. It also reflected a statute that's different from today. If you looked at the guidelines, you'd see beach park facilities and some of those improvements were not allowed under the guidelines. And that was how the statute read at the time, it didn't allow beach park facilities. COMMISSIONER MAC'KIE: Are there some glitch amendments we need to be doing there to make our guidelines match current implementation? MS. ASHTON: I think because it was adopted by motion, as opposed to a resolution, that it's not necessary that those be repealed. You may want to take a look at them at some time and adopt new policies governing the beach, since they are going to Page 71 January 16, 2001 the beach -- City of Naples beach committee. And that's not something that's required by statute, that just reflects the desire of the county. COMMISSIONER MAC'KIE: I wouldn't want them not to go to the committee. My question is, are there facilities that are permitted that we are in fact using tourist tax for that contradict those guidelines, and we are doing that because these are merely guidelines? And if that's the case, we ought to clean up the guidelines. MS. ASHTON: Well, I think there are some expenditures that are contrary to the guidelines. But again, if you want, at your next board meeting you could expressly declare that those are not -- it's not the policy of this current board. Or you could adopt other guidelines. Again, I believe that those guidelines reflected the policy of the board at that time. And because it was not adopted by resolution or ordinance, it's not something that necessarily needs to be officially repealed. CHAIRMAN CARTER: Would that be something, though, we should incorporate in the workshop on the TDC and look at that and give direction at that time, as there may be some other things, rather than trying to bring it piecemeal? I think I'd like to look at the bigger picture, and this may be one part of it. And I appreciate that being raised this morning. COMMISSIONER MAC'KIE: I'd like not to have a messy record. I mean, if we can clean it up, let's make it nice and neat. CHAIRMAN CARTER: Well, we may discover some other things that will need to be cleaned up. COMMISSIONER MAC'KIE: While we're cleaning, let's clean it all up. CHAIRMAN CARTER: That's right. MS. ASHTON: The last item I'd like to cover is the Tourist Development Council. And that is an advisory board to the Board of County Commissioners. And it's required by statute that they make a recommendation to this board on any uses, expenditures of the funds, so if an item comes to you and did not go to the TDC, we would run the risk that it might be challenged and found to be an illegal expenditure. And I just wanted everyone to be Page 72 January 16, 2001 aware of why it has to go to them. I'd like to go to the questions now. The first hypothetical is an owner of a condominium in Collier County decides to go out of town for the months of January and February and rent his or her condominium. Is this rental subject to the tourist development tax? And the answer is yes. Because it's the rental of living quarters in a condominium for a period of less than six months. And if anyone finds themself in this situation, they can go to our tax collector and fill out a form and submit the tax. There are some exemptions. The public can contact the county to determine if they qualify for an exemption. COMMISSIONER HENNING: Who do they contact within the county? MS. ASHTON: Pardon me? COMMISSIONER HENNING: Who do they contact in the county? MS. ASHTON: Well, they could probably contact Greg Mihalic at the Office of Housing and Urban Improvement, would be the best person to contact. I believe there's some exemptions for full-time students and for migrant camp facilities. CHAIRMAN CARTER: But it's one of those interesting enforceable issues where less -- you know, a lot of people don't do that. And how do you enforce it? And -- MS. ASHTON: Really, I think it's more of a Good Samaritan issue at this point, because I don't think we have the manpower to enforce it. Although if it were determined that somebody didn't comply, their -- you know, the criminal punishment would be a misdemeanor. CHAIRMAN CARTER: Well, condo management associations could really help us a lot in this area by following the rules at this. Because every time you don't do that, you're taking away from the tax that helps maintain beaches, parks -- MS. ASHTON: Sure. CHAIRMAN CARTER: -- all the things used by those folks that we're renting those units to. So all we can do is encourage their support in this area. COMMISSIONER MAC'KIE: And collection, am I wrong, is the tax collector's job? Don't we pay him two percent of the total Page 73 January 16, 2001 tax to collect this money? I'm sure that if anybody's diligent, it's Guy Carlton getting out there trying to collect it. So that isn't even within our purview, I don't think. I think that's his job. MS. ASHTON: The next hypothetical is an editorial in the Naples Daily News questions why tourist development tax dollars are not being used for road construction projects. Is this an appropriate expenditure? And the answer is no, it's not a use that's expressly authorized under Section 125.0104, Subsection (5)(A). And I did actually see this editorial, so I thought it was a good one to refer to. COMMISSIONER MAC'KIE: I might phrase it differently. It might be an appropriate expenditure, but it's an illegal one. MR. OLLIFF: Right. COMMISSIONER MAC'KIE: You know, we might wish we could, but we can't. MS. ASHTON: And the last hypothetical is a resident of Collier County desires to -- desires that tourist development tax revenues be used to fund a nature center that will be used only by residents of Collier County. Is this an appropriate expenditure of tourist development tax funds? And the answer is no, because it's benefitting only the residents, and tourist development taxes must be used to promote tourism. COMMISSIONER MAC'KIE: If, however, there were an international botanical garden about to come into Collier County that would attract tourism from all over the world, that is something that's permitted under the statute to be funded but not currently listed as a permitted use in our ordinance; is that true? MS. ASHTON: That's correct. As I previously mentioned, our ordinance does not list everything that's allowed under the statute. A few things in the statute that are not under the ordinance and would require an ordinance amendment to go forward is a nature center, a zoological park, or if we decided we wanted to fund a tourism bureau. CHAIRMAN CARTER: On the other hand, that still has to stay under the three cents. COMMISSIONER MAC'KIE: That's right. MS. ASHTON: That's correct. Page 74 January 16, 200t COMMISSIONER MAC'KIE: But in literature, they call it foreshadowing. MS. ASHTON: That concludes my portion of the presentation. If you have any questions, I can either take them now or I can turn the microphone over to Jacqueline Hubbard Robinson. MR. WEIGEL: As Jackie comes to the microphone, I'll mention she's been with our office less than a year but a very welcome addition, having previously been seven to eight years city attorney for Ft. Myers, Board Certified local government law. COMMISSIONER MAC'KIE: Can I just say that in my experience, just a very good addition to the staff. Just does a really good job in giving the bottom line, and that's what I always like. MS. ROBINSON: Thank you very much, and good morning to all of you. I will try and keep my presentation fairly short. I think Heidi did an excellent job in presenting most of what I would have just added to. Basically what I'd like to present to you this morning is to try and demonstrate for you the kind of legal issues that occur simply from a request to you to authorize the expenditure of tourist development tax dollars. And some of these issues are very difficult issues. They're not very easy. If you'll turn to Section 5 of your booklet and go about halfway in, you'll see where my presentation starts with some color outlays that are similar to the ones that are up there on the screen. COMMISSIONER MAC'KIE: Behind the green page. MS. ROBINSON: Right, behind the green page in the middle of that Section 5. First of all, there are a set of charts that follow those little photographs which basically just outline for you what is in this section. And there's no need for me to go through those. The first section is what I call statistical analysis. This analysis was presented to the Tourist Development Council at their January 8th meeting. And you may already have this, but if you don't, it's very important, I think, for you to take a look at it because it explains to you the manner in which the tourist Page 75 January 16, 2001 development tax revenues have been expended in this past year, and some of the plans for the expenditure of this revenue in the coming year. The first chart shows the various types of projects that were funded by tourist development tax revenues by category. And the county has developed these categories, and these categories appear to be in conformity with the state statute. So in Category A, you have beach renourishment projects, and these total some $12,992,900 in the year 2000, and they covered all manner of types of projects, from cleaning beaches to building facilities on those beaches. And if you notice, at least one of those projects was not approved by the DCA but was apparently approved by the County Commission. Category B is for advertising/promotion and special events, and the county expended over two million dollars for advertising/promotion and special events in the year 2000. The next category is Category C, which is for museums. And the county expended $786,400 for museums. The final category's for disaster funds, and I know you're going to have a workshop with the TDC, so you may ask them to give you a little bit more information regarding the disaster funds. It appears that one million -- over a million dollars was expended of these funds, and it's not clear from the chart exactly how they were expended. The next chart shows you that fortunately for Collier County the tax revenues collected by year has increased substantially of tourist development tax revenues. In 1996 the county collected approximately six million dollars in tourist development tax revenues. And it's projected by the year 2001, the current year, that you're going to collect over nine million dollars in tourist development tax revenues. So this is a very important source of revenues for the county. The next chart, if you turn the page you'll see a bar chart, and it shows that between February, March and April of each year for the past -- at least from '97, the bulk of revenues come in within those three months of the year. So those are the high tourist season months for Collier County. The next chart is a pie chart, and it shows you that -- of all Page 76 January 16, 2001 the tourist development revenues that come in, at least that came in for the year 2000. And this is an interesting one to me, because I didn't realize that it would be quite broken down in this fashion. But Collier County as a whole provides 51 percent of your tourist development -- COMMISSIONER MAC'KIE: Unincorporated Collier County. MS. ROBINSON: Unincorporated Collier County. And Naples provides 21 percent, and Marco Island provides 26 percent. So that's pretty interesting, I thought. COMMISSIONER FIALA: Very. MS. ROBINSON: The final chart is -- it shows you a flow chart. It's shows you how the revenues come in. And they've taken one particular month which is the month of November. And the revenues come in from the various portions of the county, they go to the tax collector's office, and then they flow back out to the various projects. And those various projects, as I said before, do in fact conform with the state statute. So I don't think there's a problem there. COMMISSIONER MAC'KIE: Can I ask a question about that, Jackie? That chart, because I found that really interesting, that is only a one month? MS. ROBINSON: That's a one month. COMMISSIONER MAC'KIE: I'd love to see an annual on that, because -- I wonder if it holds true, does it, that 80 percent goes to beaches, about 10 to museums and about nine to advertising promotion and one to disaster? MS. ROBINSON: Yes. When I reviewed the charts at that meeting, it appeared to conform. I think that they have these percentages that they try to adhere to throughout the whole year. COMMISSIONER MAC'KIE: So it's basically 80, 10, nine and one. I mean, that's pretty easy to remember. And the nine is lower than I thought. MS. ROBINSON: Well, that's -- and I'm sure you had a very interesting discussion with them, because it's such an interesting area of county business, this tourist development tax revenue. So now there are many legal issues that are always Page 77 January 16, 2001 presented. I want to -- and bear in mind three things as commissioners when matters have gone to the Tourist Development Council -- and they will make a recommendation to you regarding whether you should approve these expenditures or not. But there are three things that you should always keep in mind as you decide whether or not you're going to approve an expenditure from the tourist development tax revenues. First the use of tax revenues should never exceed the specific purpose for which the tax was created. Now, this is a rule of law in the State of Florida, but it's also in general a rule of law in the country for tax revenues, because tax revenues are considered a very special type of revenue. COMMISSIONER MAC'KIE: Jackie, is that written someplace in here? MS. ROBINSON: At the end -- I have a little chart at the end that lists everything that I think you should note, and I'll review that at the very end of my presentation. That is in here. This isn't. Except by analogy. In fact, Florida law requires that all tax expenditures to be spent must be spent only as set forth in the statute that specifically authorizes the tax. Therefore, if the statute does not provide for a particular type of expenditure, then the money cannot be lawfully spent. And it's a very hard rule that they use here. Secondly, Collier County has both a two percent tax, tourist development tax, and that provides for 70 percent of the collected revenues to be spent for beach park facilities, or beach improvement. And then there's an additional one percent tax that's for beach improvement, maintenance, renourishment, restoration, and erosion control. So you actually have two separate funding sources that together make up the three percent, and the specifics of each have to be adhered to. And third, tourist development tax expenditures should conform to your tourist development plan. And there's a tourist development plan for Collier County that's been in place I think since '92 it's been amended. So those three things bear in mind -- if you have a question Page 78 January 16, 2001 about the appropriateness of an expenditure, those three questions should at least come into mind. And so occasionally you will be presented with very novel issues, and you have recently, because I've worked on three novel issues since I have been here, and I've only been here about four and a half months. Now -- so I'll talk to you about two of those. It's really interesting. One you've already ruled on and decided to do something about. The other one is there. And the one I'd like to spend the most time talking about is the Vanderbilt Beach parking garage facility. Now -- so a simple request will come in to you, can we use tourist development tax funds to pay for a parking garage facility at Vanderbilt Beach. And there are three questions similar to the process I just described to you that should be asked that came up with this case. One, does the parking garage fall within the definition of a beach improvement or beach park facility? And second, did the parking garage need to be approved by the Tourist Development Council? Because in this case it wasn't. And third, if an expenditure conforms to the plan, does it matter if it was not approved by the Tourist Development Council? In this particular case, we worked -- our office worked very closely with parks and recreation to get all the background documents and facts regarding this issue, and we've spent a lot of time discussing it. We looked for case law that was right on point to see if we could see -- find a case that said a parking garage was a beach park facility and could locate none, not in the State of Florida, anyway. However, we did locate a couple of Attorney General opinions, which are not legal opinions, not binding, but can be used as sort of a guide. And they're based upon a lot of good research by the Attorney General, so we often use them when there's no case law appropriate. In this particular case we did find a couple of Attorney General opinions that were written prior to the statutory change that was done by the Florida legislature. And by using those Page 79 January t6, 2001 cases and viewing the language in the changed statute, which, by the way specifically provided for the expenditure of tourist development tax funds for parking facilities after -- for beach park facilities after these matters were decided by the Attorney General's Office who decided after a request from a county asking whether they could build a parking garage, was told no, you couldn't, then the legislature changed the statutes, and we believe that you can build a parking garage using tourist development tax funds now. So that was that issue. The second issue was if the Tourist Development Council doesn't agree to it and won't recommend the expenditure, can the county commission go ahead and approve the expenditure anyway? And there are several ways to look at this issue. In this particular case with Vanderbilt park -- with the Vanderbilt parking garage, the Tourist Development Council did not approve it -- well, not approve, decided not to recommend it. However, they had previously recommended a parking facility that was paid for with tourist development revenues. And it appears from the minute that they didn't even deal with the issue of whether or not it met the plan or anything, it just wasn't on their list of priorities and they weren't ready to go forward with it at that time. So based upon their prior actions and based upon the change in the statute, our conclusion was that yes, the County Commission could build a parking garage and use tourist development tax funds to pay for it. There's some other issues involving the parking garage at Vanderbilt Beach which I won't go into. They have to do with the manner in which the county acquired that property, which was by a deed of conveyance from the developer. And in the deed of conveyance itself it says that it's a gift. This is a gift we're giving to Collier County. And also, you should note that in that deed, they have some restrictions on height. You can't build above 20 feet, et cetera. Those issues are being dealt with through meeting with the developers to see if they're willing to agree to let us build a parking garage. And if they don't, there's probably legal action that can be taken by the county to avoid those deed restrictions. Page 80 January 16, 2001 So that's one little question that had all those issues. The other one you've dealt with already, which is the T-groins on Hideaway Beach. The main issue on that one is whether or not it was a public expenditure. And the reason why that is important is because, as I said before, Florida law is very clear that you may expend tax dollars, but only if tax dollars are being expended for what is -- can easily be defined as a public expenditure for a public purpose. Now, if the public purpose somehow encompasses a private purpose incidentally, then it's all right. But you can't have an expenditure of tax dollars for a purely private purpose. And I think the discussions that you've had along those lines are certainly in conformity with our opinion from our office on that issue. And if you have additional questions, both memoranda are in this handout to you, so you can read it further. And if you have any questions, I'll be happy to speak with you about those. Then finally, at the end of the handout for our section, these are the key issues that I'd like for you to keep in mind regarding the use of tourist development tax revenues for specific projects. And yes, these are written. First the determination of whether a particular project is tourist related and primarily promotes a purpose, a public purpose, is a factual determination that must be made by the Board of County Commissioners. So when a request for expenditures comes to you, bear in mind that when you accept it or decide to pay for it, that you will make a finding that it is for a public purpose and that it promotes tourism. Secondly, the expenditure of any tax requires this articulation of the public purpose, so hopefully you'll be in the habit of articulating a public purpose each time you approve a tourist development tax expenditure. The primary purpose then should be to serve the general public, even though you may incidentally serve members of a private sector. Now, Section 10 of the Florida Constitution prohibits the pledging of public funds or the use of the county's taxing power, or a pledge of the county's credit to aid a private corporation, an association or partnership or any private person. You have to bear that in mind. Because this is the language that always Page 81 January 16, 200t shows up when a private citizen decides to contest an expenditure, and they go into court to sue the county, they're going to say that you violated the Florida Constitution because you have approved expenditures that are going to benefit a private person and not the public. So you have to bear that in mind. Fin -- also, tourist tax revenue expenditures must fall within the tourist development plan approved by the County Commissioners and the Tourist Development Council. If it's not approved by the Tourist Development Council but it's in the plan, then your majority vote is fine. If it's not approved by the Tourist Development Council and it's not in the plan, and you wish to go forward on a project, then that requires a super majority vote and an amendment of your plan to include what it is you want to build. All right? That's very important. And Florida law requires that taxes may be assessed and collected only in a manner prescribed by statute. And finally, once the tourist development plan has been enacted, it may not be substantially changed, unless you go through the method that I just spoke to you about. And that concludes my presentation. COMMISSIONER MAC'KIE: Any questions, board members? All right, thank you, Jackie. Very good. MS. ROBINSON: These are some handouts I'd like to hand out to you. And there are a couple of determine memoranda regarding the use of tourist development funds that you might find interesting. COMMISSIONER MAC'KIE: Thank you. David, what's next? MR. WEIGEL: Well, we're really almost done. Thank you. I want to say that this opportunity to talk a little bit about this topic of civil emergencies is what I'd like to say is to let you know that you're with the good hands people. You always knew that, of course, with the county manager's emergency operations center, what good care they take of you. And we certainly do work with them in a coordinated way. And this is an opportunity for us outside of the normal emergency weather schedule in the spring when I know that emergency -- the emergency services Page 82 January 16, 2001 divisions is going to be addressing you specifically. They asked and we were delighted that they could jump in with us, and so Ken Pineau and I'll both talk to you briefly about civil emergencies. Now, in the large green book you have, Tab No. 6, it doesn't have a lot of backup. Well, why? The reason is if we'd given to you all the backup that we'd like for you to have, it would have made that book almost unwieldy. On August 23rd of this past year, our office created and we provided to all of the commissioners a civil emergencies workbook, law and procedures, and we're flattered to know that with the commissioners that have left, they evidently took them with them, because they're not around anymore. So we created these again, and these are provided with you as ancillary to your green workshop book that you have. And so everything that I'm going to be talking about comes from the blue book, or the white book, as yours may be, as opposed to the green book. Now, what do we have when bad things come to Collier County? Well, we may have a situation calling for a declaration of state of emergency. The red tab on your blue or white book, if you pull that open, will take you, if the get to the right side of the page, will take you to the ordinance definition of a declaration of emergency. And this is Ordinance 84-37, adopted by the Board of County Commissioners in 1984. As you can see on the lower left page, the definition of emergency is any occurrence or threat thereof, whether accidental, natural or caused by man, in war or in peace, which results or may result -- which results or may result in a substantial injury or harm to the population, or substantial damage to or loss of property. Put that back into modern terms, if we're not talking about severe weather, then we may be talking about fire. And tis the season for at least one of those right now. When there is in fact emergency conditions, they don't just -- the conditions may exist, but they have to be formally recognized at the local legal. Now, the State of Florida, through Chapter 252 of the Florida Page 83 January 16, 2001 Statutes, has quite a number of statutes talking about state of emergency. The Governor has significant power, although the Governor's powers are somewhat limited in regard to local application. The Governor can declare a state of emergency; he can declare it for the whole state, for part of a state, for a region, depending on whatever the issue may be. They did it a couple of years ago in regard to the fires that were occurring in various places of the state. But when it gets right down to local government and the conditions in Collier County, the Board of County Commissioners has significant power and of course responsibility in regard to emergencies. It takes an act to the board to declare an emergency. But if the situation is such and the timing is such that a full quorum of the board cannot meet to declare an emergency, on the very same page where the declaration of state of emergencies is shown, specifically provides for the order of hierarchy of authority to declare an emergency. If you can't get a quorum of the board, then the chairman of the board can so declare. If the chairman's unavailable, the vice-chairman may declare it. If the vice-chairman is unavailable, the county manager may declare. And so it goes. The extent of the statement of emergency, this is done by what we call a proclamation/resolution. It is a proclamation that's defined by state statute. Resolution is what works with the clerk's office. So you will see some exemplars in this binder that you have of just those very things, harking back to 1992, Hurricane Andrew, and two years ago, I guess it was, Georges, or whatever it was, it was either a hurricane or a tropical storm. Georges. But the fact is, is that we work hand in glove with the county manager and of course the emergency operations center to have these things prepared and ready to go, so whomever is the declarant on behalf of the Board of County Commissioners, these things can be enacted and go in place. A local state of emergency lasts for seven days, is subject to renewal, but is never anything that stays in place indefinitely. Now, if I speak too much, I'll talk over what Ken Pineau is Page 84 January 16, 2001 going to tell you. But included in this ordinance is the policy for closing down county operations. And the policy for closing down county operations includes responsibilities of the county manager, some employee responsibilities, obviously there are capital facilities as well as safety management functions that county staff has on a regular daily basis. And these things are not lost in the lurch when it comes time for state of emergency. I won't go into the detail on that. If you have questions, I'd probably ask you to direct those to either Tom Olliff or Ken Pineau. But those are part of what's in your backup here. And so I hope that this binder will in fact be a handy reference for you. Couple more things and then I'll step aside. In 1998, the board adopted Ordinance No. 98-62, which does address recovery, reconstruction, some mitigation activities, facilities restoration, and debris clearance. This was something we did hand in glove in working with our Growth Management Plan, at which also had an ordinance adopted. The plan had an ordinance adopted by the board affecting it in 2000. And that's Ordinance 2000-27. And that addresses the maintenance or reduction of hurricane evacuation times, and also provides a definition of the coastal high hazard areas, as specifically applied in Collier County. With that, again, we hope that we've provided you the assurance, not only on this topic but the other topics, that you are in good hands. But when it comes to time of emergency, our office stands right up there with the other offices to see to it that the governance that you provide is as seamless as possible. And Ken? MR. PINEAU: Good afternoon, commissioners. I'm Ken Pineau, your emergency management director for the past 13 and a half years. I'd like to give you a brief overview of your responsibilities as it pertains to Chapter 252 of the Florida Statutes, otherwise known as the State Emergency Management Act. Last year this was rewritten, and I'll go through some of the substantive changes as we go along through my presentation. I'd also like to brief you on your emergency management powers during emergencies, the powers of the Governor, states Page 85 January t6, 2001 of local emergency and our mutual aid agreement that we have with other communities. As the governing body for Collier County, you have innate responsibilities for the protection of the lives and property of not only the citizens, but the guests to Collier County to the maximum extent possible. This includes the entire jurisdictional limits of Collier County. In order to accomplish this, each county must have an emergency management department that has jurisdiction over and serves the entire county. The department must have an emergency management director, which is appointed by the governing body or, as it was just recently changed last year, to the chief administrative officer, the county manager. And the emergency management director serves at the pleasure of that appointing body. The director has the direct responsibility for the organization, administration and operation of the emergency management agency. In addition, the director has the responsibility for serving as a liaison with not only the Florida division of emergency management, but all other emergency management agencies within the state and the country. When disasters or emergencies exceed the capabilities of the local jurisdiction, as Mr. Weigel mentioned, we should issue a state of local emergency. That not only accesses state assistance, but also it triggers the mutual aid response that we can get from other communities. What we normally try to do is have the -- a proclamation pre-crafted prior to the event of a hurricane. Now, all the other emergencies like weapons of mass destruction and brush fires, this occurs obviously afterwards. The state of emergency, as Mr. INeigel mentioned, has a period of seven days. We've never been -- we've never had the opportunity to extend that. Although I think back in 1992 we probably should have, but it was slipped by in the process. That was probably due to my fault. The state of local emergency allows the county to waive the normal competitive bid procedures and formalities otherwise required by law pertaining to public works, the performance of Page 86 January 16, 2001 public works, entering into contracts, incurring obligations, use of volunteers, rental of equipment, acquisition and distribution, with or without compensation of complies, materials and facilities. Now, something new that came up this year as a result of the new update of the Chapter 252, upon the request of the emergency management director, Collier County public schools has to provide sheltering facilities, as well as staff, to man these facilities. They also shall provide transportation assistance for emergency evacuation when required. Now, let's go into the emergency management powers of the Governor. In major or catastrophic disasters beyond Collier County's control, Governor Bush may assume direct operational control over all or any part of the emergency functions within the state or portions of the state. These emergency powers, however, can be delegated. The Governor may issue an executive order which triggers a state of emergency for portions of the state. This state of emergency normally lasts for 60 days, but that has been extended on occasion. As Mr. Weigel mentioned, the brush fires up in the northeast Florida area a couple of years ago, that went on and on and on for a period of several months. The executive order shall activate the mitigation response and recovery aspects of state-wide emergency management plans. Now, for -- something else has come up. The definitions of minor, major and catastrophic disasters. Well, a minor disaster is something that we can handle on our own. It's probably nothing more than an emergency. A major disaster is something that will require not only state assistance but some federal assistance. And something that has been addressed with the new update to Chapter 252 is that licensed medical professionals, the doctors and nurses that are licensed in the other states, will also have the right to practice in the State of Florida, if there has been a major disaster declared. A catastrophic disaster is an automatic assumption to the President of the United States that federal military forces will be Page 87 January 16, 2001 required. The last time we had to activate that of course was Hurricane Andrew in Miami/Dade. The Governor, some of his responsibilities, he can order a mandatory evacuation from a threatened area. He can define evacuation routes, although our routes are pretty well defined here. We really don't have that many of them. He controls ingress and egress into a disaster area; he can suspend the limit, sale or transport of alcoholic beverages, firearms and explosives; make provisions for temporary emergency housing; take measures for limiting gas, water and electric power distribution in the general public interest. That's also something new that's been identified this year. He could also establish curfews in the disaster area; he authorizes the use of forces and cleanup in recovery operations when proper permission to enter private property has been attained. Now, mutual aid agreement -- and I'll just wrap this up -- we recently signed the state-wide mutual aid agreement. Not only with the other 66 counties in the 400 and so municipalities in the state, but every independent district in the State of Florida has the potential to sign the agreement. Now, we're getting them from the independent fire districts now that have gone up to the state. And this allows us to either provide assistance to other agencies, like we have in the past. In 1992 we provided a lot of assistance to Miami/Dade during Hurricane Andrew. In 1994 we went up to Washington County as a result of Tropical Storm Alberto to provide some emergency management assistance there. And I believe in 1996 in Hurricane Opal, some of the folks from our domestic animal department also provided some assistance up in the Pan Handle. So the mechanics are in force. It's pretty self-explanatory. It's an excellent mutual aid agreement, I believe. And not only for the State of Florida, but there is a nationwide emergency management compact, and through the State Division of Emergency Management we may also be called to provide assistance in roughly 35 states right now, as well as the Commonwealth of Puerto Rico and some of the other independent agencies. Under the state-wide mutual aid agreement, we must render Page 88 January 16, 2001 assistance, when requested, to the fullest extent possible, depending on our manning situation here. We try to do our best to honor those requirements. That, commissioners is a brief overview of the board and Governor's responsibilities during emergencies. If you have any questions, I'd be happy to answer them. COMMISSIONER MAC'KIE: I have just one. MR. PINEAU: Yes, ma'am. COMMISSIONER MAC'KIE: When we are asked to declare a state of local emergency and we get to the meeting and the proclamation's already prepared, I noticed here that we have the power to do a lot of things in that proclamation. Is that the place where we would do it? As has been explained to me in the past, the usual effect of that declaration of emergency is to prevent price gouging, to open shelters and to -- and that's about it. MR. PINEAU: Yeah. I -- COMMISSIONER MAC'KIE: So do you make the decision based on experience or based upon on a protocol about which of these -- I mean, we could suspend the sale of alcohol, we could set curfews, we could do a lot of things. MR. PINEAU: I'm not sure if we can do that anymore, according to the statutes. COMMISSIONER MAC'KIE: Is that what you're telling us? MR. PINEAU: Right. COMMISSIONER MAC'KIE: Okay. Because that's new. MR. PINEAU: Unless it's delegated by the Governor. COMMISSIONER MAC'KIE: But at this point -- when was that statutory changed then? MR. PINEAU: It came out in 2000, the latter part of 2000. COMMISSIONER MAC'KIE: So the only authority left to the County Commission now, unless the Governor should delegate it, is what? MR. PINEAU: Actually, the only powers that you have right now is to eliminate the normal competitive bid procedures and for the performance of public works, entering into contracts -- COMMISSIONER MAC'KIE: That's it? MR. PINEAU: -- incurring obligations. That's basically-- COMMISSIONER MAC'KIE: We -- Page 89 January 16, 2001 MR. PINEAU: -- according to the -- THE COURT REPORTER: Excuse me? COMMISSIONER MAC'KIE: Sorry. We can't prohibit price gouging? MR. PINEAU: There's nothing in the statutes that says that you can or cannot, that I'm aware of. COMMISSIONER MAC'KIE: And what about, is there anything that says we can establish shelters? MR. PINEAU: Shelters I think is part of doing business, I think. That's-- COMMISSIONER MAC'KIE: So what we have here in this -- mine's a white book -- that David gave us, the code book, Civil Emergencies, the first -- Chapter 38, which is the local ordinance on emergencies, do we need to revise, because it's very much behind the curve now with this new 2000 statutory change. Because we can't do -- we can do about 20 percent of what it says we can do in this -- in our ordinance. So it sounds like something we need to review. MR. WEIGEL: I think we do need to review it. I'm a little less circumscribing of the local powers under the new statute. And by the way, the resolution proclamations that we did in the past were more for information purposes, because price gouging was automatically in place when the board declared -- COMMISSIONER MAC'KIE: So how does that happen automatically, David? That was really my question. Which of these -- assuming, and in the past apparently we did have this list of 10 -- MR. WEIGEL: Yeah. COMMISSIONER MAC'KIE: -- emergency measures that could be implemented by declaration of local emergency. How did we know which of those were automatically included and which were not? MR. WEIGEL: Well, the ones that we didn't include typically in the resolution were ones that would take an action from the board. For instance, declare certain areas off limits to all but emergency personnel, which is sub 4 of that category of about 10. COMMISSIONER MAC'KIE: And maybe I'm beating this horse Page 90 January 16, 200t to death, but if you look under the tab, David, for the proclamation resolution stuff-- MR. WEIGEL: Right. COMMISSIONER MAC'KIE: -- it listed things like evacuation and shelters and work schedules, but it didn't say anything about price gouging or -- it made me worried that there might be a little glitch in the translation there. MR. WEIGEL: No -- COMMISSIONER MAC'KIE: How do we know which of those 10 powers we are exercising upon the adoption of a resolution? MR. WEIGEL: Well, okay, if you -- what you're looking at I think is the first page of the resolution. But if you go to the second page, just above the signature area, where the eight categories, including-- COMMISSIONER MAC'KIE: I think that's just the one that talks about procurement policies. MR. WEIGEL: I know it's in there. Here it is. Be it further resolved, to the top of the second page. It's in the action part of the ordinance -- of the resolution, where the be it further resolved and proclaimed it's unlawful and offensive in Collier County for any person to charge more than a normal average retail price. COMMISSIONER MAC'KIE: Thank you. So that -- MR. WEIGEL: We've made it a habit of always having that there so it's an action item or informational item for anyone that sees this resolution, because not everyone sees the ordinance that's out there. COMMISSIONER MAC'KIE: So if, God forbid, we have an emergency with the fire in this season or a hurricane, will we no longer -- you need to tell us if we're going to no longer have the authority to do that. And, you know, what exactly we have the authority to do. It's a little troubling. Because those are important powers. MR. WEIGEL: Well, it is. As I mentioned, I'm not of the opinion that we've absolutely lost these in reconciling this with the amendment that came with Chapter 252 this year. COMMISSIONER MAC'KIE: So maybe we'll look at that, and if you see that we have problems, it's something that we'd want Page 91 January 16, 2001 to put -- MR. WEIGEL: We'll bring it forward -- COMMISSIONER MAC'KIE: -- before our legislature. MR. WEIGEL: Yeah. COMMISSIONER MAC'KIE: Because we can't not have those really important local powers for a local emergency. MR. WEIGEL: Right. Very good. MR. OLLIFF: But nothing that Ken indicated affected our ability to have a local ordinance that affects the price gouging portion of that. The changes to the statute were primarily more for the shift in responsibility from local to the Governor's Office in terms of issues like being able to establish curfews and being able to ration the sale of fuels, explosives and alcohol and those kinds of thing. Which to my recollection, Ken, I don't recall that this local body has ever actually enacted any of those type of issues. So I think the things that we traditionally have always decided upon are still available for local -- COMMISSIONER MAC'KIE: And if -- MR. OLLIFF: -- decisions. COMMISSIONER MAC'KIE: -- that's the case, I would again, for housekeeping, would want our ordinance to be amended to match the state law so that we don't think we have the ability to suspend the sale of firearms if we don't. MR. OLLIFF: And keep in mind, the board also still continues to have under state statute the health, safety and welfare responsibilities for the community. And the county's emergency operation center and emergency management director has certain responsibilities during a case of an emergency that are outlined by statute as well, and we become the coordinating agency for a large number of other public safety agencies in the area. COMMISSIONER MAC'KIE: And the last comment I had was just whether, Tom, you've looked at -- and when Mr. Fernandez was here, I was happy that he had established these procedures of, you know, who's in charge of what during an emergency county policy during emergencies in March of '98. I just thought that is so important, that it would be worthy of your review to be sure you agree with the way it was set up. Page 92 January 16, 2001 MR. OLLIFF: And some of that may need to be amended, based on recent reorganizations. COMMISSIONER MAC'KIE: That's all I have. Does anybody else have questions? COMMISSIONER HENNING: I just have one comment. The emergency management's web page is really awesome. COMMISSIONER MAC'KIE: Uh-huh. COMMISSIONER HENNING: It's one of the best. MR. PINEAU: Gary Arnold has probably developed the best emergency management web page in the country. COMMISSIONER HENNING: It should be a nationally award -- MR. PINEAU: It has been recognized twice nationally. MR. OLLIFF: I will tell you, there are certain things county government has traditionally done well, and emergency management is one of those. And a lot of that credit goes to Ken. But I do want to -- the board as part of this to understand, especially as brush fire season is upon us, and what's the index now, Ken? MR. PINEAU: 552 today, which is getting to be close to the critical stage. MR. OLLIFF: And as some of these issues, generally we're always dealing with either hurricanes and/or brush fires, just depending on which time of year it is, we will call on you to establish declarations of emergency, when the necessary -- when the need arises. And just from a practical standpoint, we will ask to you meet downstairs in the emergency operations center where we are set up down there to actually have a makeshift County Commission meeting, which can be televised from that location, where we will ask you then to adopt a resolution proclamation declaring that state of emergency and put things into effect. But a lot of that is just we wanted to you know location-wise and hopefully as part of your orientation tour, you got a feel for where those meetings occur, where the other agency heads sit and where those decisions get made. But as some of these things occur, I think we would suggest that you probably come down and actually sit and spend some time in the EEOC, just so that you can get a feel for how some of that decision-making Page 93 January 16, 2001 gets made, because I think it will help you as you go along in your tenure. COMMISSIONER MAC'KIE: It's fascinating, anyway. It's really fascinating. MR. OLLIFF: Thank you, Ken. MR. WEIGEL.' I'll just mention that we're very pleased that you could allow us to meet with you today and make this presentation. We have as a postscript in your binder ordinance information about board meetings and reconsideration. It's fairly self-explanatory. We're happy to continue, but we're also just happy to see if you'd like to read it and get back to us, that would be wonderful, too. I know we've had the opportunity to talk with a few of the commissioners one-on-one in regard to those items. COMMISSIONER MAC'KIE: Are there any questions, board members have? This would be a good forum, if anybody has any other reconsideration. COMMISSIONER HENNING: Which tab is that, seven? MR. WEIGEL: It's tab seven in the book there. COMMISSIONER MAC'KIE: Just the -- I know there are exceptions, but in general, the deadline for bringing an item back for reconsideration is 30 days? MR. WEIGEL: That's right. It does state in the ordinance, no motion for reconsideration shall be made later than 30 days from the initial determination. With our current two meeting a month type of board meeting arrangement, that makes it incumbent upon the commissioner to provide their memo request for reconsideration to the county manager at least six days before that second meeting following the meeting where an action was taken. COMMISSIONER MAC'KIE: In other words, you have about a week after a meeting to decide if you want to reconsider or not, if you voted in the majority. And if you do, get it to Tom fast. MR. WEIGEL: That's right. And you may have up to two meetings to do that memo, but it always has to be at least six days prior to the meeting. And then if the board does vote to reconsider, the matter shall come back -- the matter in chief will Page 94 January 16, 2001 have come back two regularly scheduled meetin.qs later. COMMISSIONER MAC'KIE: Any other questions on that? Anything else on our agenda? MR. OLLIFF: Notathing. COMMISSIONERMAC'KIE: Any other questions in general, board members, or are we going to go eat our lunches? COMMISSIONERHENNING: Motion to adjourn. CHAIRMAN CARTER: Thank you very much tothe county attorney's office for a really informative presentation, and we'll adjourn. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:45 p.m. BOARD OF COUNTY COMMISSIONERS BOARD OF ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DISTRICTS UNDER ITS CONTROL ATTEST: DWIGHT E. BROCK, CLERK Page 95 January 16, 2001 These minutes approved presented ~// by the Board on ~//~/~--J- ...... , TRANSCRIPT PREPARED ON REPORTING SERVICE, INC.~ PUBLIC or as corrected as BEHALF OF GREGORY COURT BY CHERIE' R. LEONE~ NOTARY Page 96