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Agenda 09/10/2013 Item #16K2 9/10/2013 16.K.2. EXECUTIVE SUMMARY Recommendation pursuant to Collier County Resolution No. 95-632, that the Board of County Commissioners authorizes the Office of the County Attorney to represent Ian Mitchell, former Executive Manager to the Board of County Commissioners, who is being sued by former employee Evelyn Prieto, in the case styled Evelyn Prieto v. Collier County, a Political Subdivision of the State of Florida, Collier County Board of County Commissioners, and Ian Mitchell, individually, Case No. 2:13-cv-489-FtM-38UAM, United States District Court, Middle District of Florida, Fort Myers Division. OBJECTIVE: That the Board of County Commissioners (Board) directs the County Attorney to defend Mr. Mitchell in a suit brought by former aide to the Board of County Commissioners Evelyn Prieto. CONSIDERATIONS: Collier County Resolution No. 95-632 sets forth the Board's policy towards providing a legal defense to County Staff in litigation arising out of the performance of their official duties and while serving a valid public service. The Resolution mirrors Florida Law (both Fla. Stat. Sec. 111.07 and case law). A copy of Resolution No. 95-632 and the above- referenced Complaint are attached. Mr. Mitchell, as an employee of the Board of County Commissioners, falls within the definition of those covered by the Resolution. His termination of Ms. Prieto fell within his official duties. As a matter of law, the fact that he is no longer an employee does not disqualify him from this benefit. Mr. Mitchell contacted me on July 30, 2013, when he was served with this Complaint. Briefly stated, the Complaint alleges that Mr. Mitchell terminated Ms. Prieto's employment in retaliation for her support of certain candidates for the County Commission during the 2012 Primary and General Elections. According to the Complaint, this violated Ms. Prieto's rights under the First Amendment of the U.S. Constitution. Additionally, the Complaint asserts that Mr. Mitchell's actions constituted tortuous interference with Ms. Prieto's business relationship with Collier County. In accordance with Resolution No. 95-632 and current Florida law, County persons sued in civil actions and civil rights lawsuits may be provided representation if the litigation involving the person(s) to be represented: (1) arose out of or in connection with the performance of official duties and (2) while the County person was serving a valid public purpose. If the Board makes such findings, the representation may be either by hiring outside counsel, or through the Office of the County Attorney. Since this claim alleges a civil rights violation, the Board may elect not to provide Mr. Mitchell with representation at this time, but to instead reimburse him for reasonable attorney fees and costs should he prevail in the action. During the Board's recess, I elected to honor Mr. Mitchell's request and represent him until the Board could consider this matter. We obtained an extension of time until September 30, 2013, for both the County and Mr. Mitchell to file an Answer in order to allow the Board to make its determination. FISCAL IMPACT: The hourly charges for most litigation attorneys who would be retained in a case such as this would likely run in the neighborhood of$250.00 to $300.00 per hour. By 1 Packet Page-3038- 9/10/2013 16.K.2. directing the County Attorney to undertake such representation, costs will be minimized. This matter will be brought back to the Board should a conflict of interest arise between the County and the co-defendant Mr. Mitchell. GROWTH MANAGEMENT IMPACT: None. RECOMMENDATION: That the Board of County Commissioners directs the County Attorney to defend Mr. Ian Mitchell in a suit brought by former employee Evelyn Prieto in the case styled Evelyn Prieto v. Collier County, a Political Subdivision of the State of Florida, Collier County Board of County Commissioners, and Ian Mitchell, individually, Case No. 2:13- cv-489-FtM-38UAM, United States District Court, Middle District of Florida, Fort Myers Division. SUBMITTED BY: Jeffrey A. Klatzkow, County Attorney 2 Packet Page-3039- 9/10/2013 16.K.2. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.K.16.K.2. Item Summary: Recommendation pursuant to Collier County Resolution No. 95-632, that the Board of County Commissioners authorizes the Office of the County Attorney to represent Ian Mitchell,former Executive Manager to the Board of County Commissioners, who is being sued by former employee Evelyn Prieto, in the case styled Evelyn Prieto v. Collier County, a Political Subdivision of the State of Florida, Collier County Board of County Commissioners, and Ian Mitchell, individually, Case No. 2:13-cv-489-FtM-38UAM, United States District Court, Middle District of Florida, Fort Myers Division. Meeting Date: 9/10/2013 Prepared By Name: NeetVirginia Title: Legal Assistant/Paralegal,County Attorney 8/1/2013 4:08:01 PM Approved By Name: KlatzkowJeff Title: County Attorney Date: 9/3/2013 1:17:01 PM Name: KlatzkowJeff Title: County Attorney Date: 9/3/2013 2:22:50 PM Name: IsacksonMark Title: Director-Corp Financial and Mgmt Svs,CMO Date: 9/3/2013 2:44:35 PM Name: OchsLeo Title: County Manager Date: 9/3/2013 3:29:25 PM Packet Page-3040- 9/10/2013 16.K.2. AO 440(Rev.06/12) Summons in a Civil Action UNTIED STATES DISTRICT COURT for the Middle District of Florida EVELYN PRIETO ) Plaintiff(s) ) v. } Civil Action No. COLLIER COUNTY, a Political Subdivision of the ) State of Florida, COLLIER COUNTY BOARD OF ) -C. / D t -PM 1' +l I rr COUNTY COMMISSIONERS,and IAN MITCHELL, ) individually ) Defendant(s) ) SUMMONS IN A CIVIL ACTION To:(Defendant's name and address) Ian Mitchell 9060 Palmas Grande Blvd.#104 Bonita Springs, FL 34135 A lawsuit has been filed against you. Within 21 days after service of this summons on you(not counting the day you received it)--or 60 days if you are the United States or a United States agency,or an officer or employee of the United States described in Fed. R.Civ. P. 12(a)(2)or(3)—you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, /�`!/_whose name and address are: Bradley P. Rothman, Esq. \t `6 `fir Weldon&Rothman, PL `7 7935 Airport-Pulling Rd. N., Ste.205 —111,c"1 � Naples, FL 34109 If you fail to respond,judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: 13-13 Y t..l. Signature of Clerk or Deputy Clerk Asw Packet Page-3041- • 9/10/2013 16.K.2. • AO 440(Rev.06/12) Summons in a Civil Action(Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed.R. Civ.P. 4(1)) This summons for(name of individual and title,if any) was received by me on(date) D I personally served the summons on the individual at(place) on(date) ;or D I left the summons at the individual's residence or usual place of abode with(name) a person of suitable age and discretion who resides there, on(date) ,and mailed a copy to the individual's last known address;or D I served the summons on(name of individual) ,who is designated by law to accept service of process on behalf of(name of organization) on(date) ;or D I returned the summons unexecuted because ;or D Other(sped): My fees are$ for travel and$ for services,for a total of$ 0.00 • I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title • Server's address Additional information regarding attempted service,etc: Packet Page-3042- - ' 9/10/2013 16.K.2. RECF JVED 2013 JUL —3 !I.23 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Rtc COURT FORT MYERS DIVISION In LMy TRICT OF FLO RID ID r MYERS,FLORIDA I EVELYN PRIETO, Plaintiff, vs. CASE NO.: COLLIER COUNTY, a Political Subdivision of the State of Florida, COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS, 2Q11..._e�_ ..gtyq-�j$ZCA�t� and IAN MITCHELL,individually, Defendants. COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff, Evelyn Prieto ("Plaintiff'), by and through undersigned counsel, hereby mok sues Defendants, Collier County, Florida ("Collier County"), the Collier County Board of Commissioners ("Board of Commissioners"), and Ian Mitchell (Mitchell), and alleges as follows: 1. This is an action brought pursuant to the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983 ("Civil Rights Act") to redress the violation of Evelyn Prieto's rights under the First Amendment of the U.S. Constitution. 2. This Court has jurisdiction arising under subject matter jurisdiction pursuant to 28 U.S.C. § 1331, as this claim arises under 42 U.S.C. § 1983, the Civil Rights Act. This Court also has supplemental jurisdiction over the below Florida common law claim pursuant to 28 U.S.C. § 1367, as the state and federal claims form part of the same case or controversy. rl___ 9 _r11 Packet Page-3043- 9/10/2013 16.K.2. 3. Venue is proper in this Court pursuant to 28 U.S.C. § 1331(b),as the events or omissions giving rise to the claims alleged herein occurred in the Middle District of Florida, Fort Myers Division. 4. Plaintiff was and is a resident of the Middle District of Florida, Fort Myers Division. At all times pertinent,Plaintiff worked for Collier County in the Middle District of Florida, Fort Myers Division, serving as an Executive Aide to the Board of Commissioners. At all times pertinent, Plaintiff was well qualified for her position. 5. Collier County is a political subdivision of the State of Florida organized under the laws of the State of Florida and Ordinances of Collier County, Florida, and maintains its principal place of business in Collier County, Florida. 6. Board of Commissioners is located and organized under the laws of the State of Florida and Ordinances of Collier County, Florida, and maintains its principal place of business in Collier County, Florida. 7. Mitchell was and remains a Florida resident and citizen residing in Collier County, FL. Count I—Retaliation (Collier County and Board of Commissioners) 8. Plaintiff re-alleges and incorporates paragraphs 1 through 7. 9. At all times pertinent, Plaintiff worked as an Executive Aide to the Board of Commissioners. 10. At all times pertinent, Mitchell acted under the color of state law in his official capacity as Executive Manager for the Board of Commissioners and for Collier County. Packet Page-3044- 9/10/2013 16.K.2. Ark 11. On or about October 27, 2008, Collier County/Board of Commissioners hired Plaintiff as a Customer Service Representative for the Parks and Recreation Department. On or about May 4, 2009, Plaintiff was promoted to the Executive Aide position for the Board of Commissioners. 12. During her time as an Executive Aid, Mitchell served as Plaintiff's supervisor. As an executive aid, Plaintiff initially performed her required duties for Collier County Commissioner Jim Coletta ("Commissioner Coletta") before switching around November 2010 to perform her required duties for Collier County Commissioner Tom Henning ("Commissioner Henning"). While Mitchell was Plaintiff's supervisor, Plaintiff performed her required job duties for certain Collier County Commissioners as indicated above. 13. On or about August 14, 2013, pursuant to Plaintiff's First Amendment rights Amok to freedom of political expression, and on Plaintiffs own time and outside of her employment, Plaintiff attended a political election night celebration,wherein Plaintiff wore a political t-shirt prominently supporting Commissioner Henning, and proudly embraced and posed for a photograph with her daughter wearing a t-shirt prominently supporting Tim Nance ("Nance") for County Commissioner ("the Political Expression"). (At the time, Nance had just won his seat on the Board of Commissioners defeating Commissioner Coletta, the incumbent. It was the first time in two decades a sitting commissioner lost an election. It was also widely believed that Nance's victory would shift the balance of power within the County Commission, forming a new majority block which would include Commissioner Henning, who represented an opposing viewpoint from Commissioner Coletta.) The Political Expression was captured in a photograph and displayed on Facebook. offisk 1, 1 Packet Page-3045- 9/10/2013 16.K.2. 14. On or about August 16, 2012, Mitchell (or someone acting on Mitchell's behalf)downloaded the photograph of the Political Expression from Facebook and placed the photograph in a file concerning Plaintiff kept by Mitchell. As a strong supporter of Commissioner Coletta, Plaintiff upset Mitchell by politically supporting Nance and Commissioner Henning on her own time. Mitchell downloaded and maintained the Political Expression as grounds for employee discipline. 15. Following the Political Expression, Mitchell began ignoring Plaintiff at work (intensifying a trend of hostile behavior against Plaintiff due to Plaintiff's perceived political association with Commissioner Henning and/or Nance). 16. At a public hearing on September 26, 2012, Mitchell asked the Board of Commissioners to terminate his employment. In light of the election results,Mitchell did not want to continue working for the Board of Commissioners. 17. After Mitchell asked to be terminated, on or about October 10, 2012, Plaintiff arrived at work at approximately 8:00 a.m. only to be intercepted by security. Plaintiff was ushered into a conference that included Mitchell and a co-worker, Ken Mayo. Plaintiff was then handed a letter of termination dated October 4, 2012, told she was being paid for that day,and told that she would send in a list of her belongings and they would be sent to her at a later date. 18. The letter of termination was signed by Mitchell and did not contain language that anyone other than Mitchell was involved in Plaintiff's termination. Mitchell — on his way out - terminated Plaintiff in retaliation for her personal political support for Commissioner Henning and/or Nance. The termination did not follow proper procedure, was Dn, A ^f l l Packet Page-3046- 9/10/2013 16.K.2. • lacking in proper documentation, and there was not appropriate documentation in Plaintiff's `"" file to support the termination. 19. At a public hearing on October 23, 2012, County Commissioner Georgia Hiller admitted that there was no evidence in Plaintiff's Human Resources file to support her termination and that Plaintiff's termination was lacking in proper documentation. Commissioner Henning, who Plaintiff worked for directly, admitted that there was no reason from his perspective for the termination and that to date he had not received additional information regarding why Plaintiff was being terminated. Commissioner Coletta acknowledged that the photograph's analysis was indicative of a "political problem" surrounding Plaintiffs termination. 20. Plaintiff's support of political candidates in her private time constitutes protected speech and expression under the First Amendment of the U.S. Constitution. 21. Based on the foregoing, Collier County's and the Board of Commissioners' actions through Mitchell, including without limitation, the termination of Plaintiff, were taken in retaliation for the Political Expression. 22. Plaintiff has been damaged by Collier County's, the Board of Commissioners' and Mitchell's actions, including the loss of pay and benefits, loss of advancement opportunity within Collier County, and the overall damage to her reputation that will affect her employability for the foreseeable future. 23. Plaintiff has also experienced emotional distress, and lost enjoyment of life as a result of this retaliation. r..,..,, c -C11 Packet Page-3047- 9/10/2013 16.K.2. 24. Mitchell's actions were taken in reckless indifference to Plaintiff's federally protected rights. 25. Plaintiff has engaged the undersigned counsel and agreed to pay him a fee. 26. All conditions precedent to the filing of this action have occurred or have been waived. WHEREFORE, Plaintiff, Evelyn Prieto, demands judgment for damages against Defendants, Collier County and the Board of Collier County Commissioners, including back pay, reinstatement or in the alternative front pay, compensatory damages, attorneys' fees and costs, and for such further relief as the Court deems just and proper. COUNT H—Tortious Interference (Mitchell) 27. This is an action against Mitchell for tortious interference with a business relationship. See Alexis v. Ventura, 66 So.3d 986 (Fla. 3d Dist. Ct.App. 2011). 28. Plaintiff re-alleges and incorporates paragraphs 2 through 7. 29. Plaintiff worked for Collier County and the Board of Commissioners as an Executive Aide to the Board of Commissioners from approximately May 4, 2009 through October 10, 2012. (Plaintiff began her employment with Collier County/Board of Commissioners in October 2008 in a different capacity.) 30. Plaintiff and Collier County/Board of Commissioners had a business relationship under which Plaintiff had legal rights. 31. As the Executive Manager for the Board of Commissioners and as Plaintiff's supervisor, Mitchell had knowledge of Plaintiff's relationship with Collier County. u.,no ,.cil Packet Page-3048- • 9/10/2013 16.K.2. 32. On or about August 14, 2013, pursuant to Plaintiffs First Amendment rights to freedom of political expression, and on Plaintiff's own time and outside of her employment, Plaintiff attended a political election night celebration, wherein Plaintiff wore a political t-shirt prominently supporting Commissioner Henning, and proudly embraced and posed for a photograph with her daughter wearing a t-shirt prominently supporting Tim Nance ("Nance") for County Commissioner ("the Political Expression"). (At the time, Nance had just won his seat on the County Commission defeating Commissioner Coletta,the incumbent. It was the first time in two decades a sitting commissioner lost an election. It was also widely believed that Nance's victory would shift the balance of power within the County Commission, forming a new majority block which would include Commissioner Henning, who represented an opposing viewpoint from Commissioner Coletta.) The Political Expression was captured in a photograph and displayed on Facebook. 33. Mitchell strongly supported Commissioner Coletta. Plaintiff upset Mitchell by politically supporting Nance and Commissioner Henning on her own time. Mitchell was so upset by Plaintiff's political activities, that on or about August 16, 2012, Mitchell (or someone acting on Mitchell's behalf) downloaded the photograph of the Political Expression from Facebook and placed the photograph in a file concerning Plaintiff kept by Mitchell. From this point, Mitchell planned to discipline Plaintiff and terminate her employment because of his disdain for Plaintiffs personal political activities, including Plaintiffs support on her own time for Commissioner Henning and County Commissioner Nance. oatok Paa' 7 of 11 Packet Page-3049- • 9/10/2013 16.K.2. 34. Following the Political Expression, Mitchell began ignoring Plaintiff at work (intensifying a trend of hostile behavior against Plaintiff due to Plaintiffs perceived political association with Commissioner Henning and/or Nance). 35. At a public hearing on September 26, 2012, Mitchell asked the Board of Commissioners to terminate his employment. In light of the election results, Mitchell did not want to continue working for the Board of County Commissioners. 36. After Mitchell asked to be terminated, on or about October 10, 2012, Plaintiff arrived at work only to be intercepted by security. Plaintiff was then ushered into a conference that included Mitchell and a co-worker, Ken Mayo. Plaintiff was handed a letter of termination dated October 4, 2012, told she was being paid for that day, and told that she would send in a list of her belongings and they would be sent to her at a later date. 37. The letter of termination was signed by Mitchell and did not contain language that anyone other than Mitchell was involved in Plaintiffs termination. Mitchell — on his way out - terminated Plaintiff in retaliation for her personal political support for Commissioner Henning and/or Nance. The termination did not follow proper procedure, was lacking in proper documentation, and there was not appropriate documentation in Plaintiff s file to support the termination. 38. At a public hearing on October 23, 2012, Commissioner Georgia Hiller admitted that there was no evidence in Plaintiffs Human Resources file to support her termination and that Plaintiffs termination was lacking in proper documentation. Commissioner Henning, who Plaintiff worked for directly, admitted that there was no reason from his perspective for the termination and that to date he had not received additional Pa0P R of 11 Packet Page-3050- 9/10/2013 16.K.2. information regarding why Plaintiff was being terminated. Commissioner Coletta acknowledged that the photograph's analysis was indicative of a "political problem" surrounding Plaintiffs termination. 39. Moreover, Commissioner Hiller confirmed that it was Mitchell who caused the termination of Plaintiff's employment and not anyone else. County Attorney Klatzkow also confirmed that"the termination was Ian [Mitchellj's termination decision." 40. Mitchell's interference with Plaintiff's relationship with Collier County was intentional and unjustified. 41. In causing the termination of Plaintiff's employment with Collier County, Mitchell acted solely with an ulterior purpose, to wit, to retaliate against Plaintiff for providing political support to Commissioner Henning and Commissioner Nance. As a strong supporter and friend, of Commissioner Coletta, Mitchell harbored ill will and hatred towards :, Plaintiff due to her political expressions and associations, and it was this ill will and hatred towards Plaintiff exclusively which resulted in Mitchell's decision to cause the termination of Plaintiff's employment. 42. Collier County has an interest in retaining Executive Aids, like Plaintiff, performing in a satisfactory manner, and maintaining continuity between the County Commissioners and the Executive Aids assigned to serve them. By terminating Plaintiff, Mitchell's actions against Plaintiff were against Collier County's best interests and to Collier County's detriment because Mitchell caused Commissioner Henning to suffer the loss of his Executive Aid (Plaintiff), who was performing for Commissioner Henning in a satisfactory manner. As a result of Mitchell's actions, Commissioner Henning lost time and energy, and Auk Paae 9 of 1 1 Packet Page-3051- • 9/10/2013 16.K.2. devoted extra time and energy, to handling and/or re-assigning Plaintiffs assignments, and to re-training replacement(s) for Plaintiff. Put simply, Plaintiffs termination resulted in an unnecessary disruption for and distraction to Commissioner Henning. 43. Plaintiff has been damaged by Mitchell's intentional and unjustified interference with her business relationship, and has suffered damages, including without limitation, the loss of pay and benefits, loss of advancement opportunity within Collier County, and the overall damage to her reputation that will affect her employability for the foreseeable future. 44. Plaintiff has also experienced emotional distress, and lost enjoyment of life as a result of Mitchell's intentional and unjustified interference with her business relationship. 45. Mitchell's actions were taken with the malicious intent to harm Plaintiff. 46. Plaintiff has engaged the undersigned counsel and agreed to pay him a fee. 47. All conditions precedent to the filing of this action have occurred or have been waived. WHEREFORE, Plaintiff, Evelyn Prieto, demands judgment for damages against Defendant,Ian Mitchell, and for such further relief as the Court deems just and proper. DEMAND FOR JURY TRIAL Plaintiff does hereby demand a Jury Trial on all issues and claims so triable. Bradley P. Rothman Florida Bar No. 0677345 brothman @weldonrothman.com WELDON & ROTHMAN, PL 7935 Airport-Pulling Road N., Suite 205 T rro 111 „f1.l Packet Page-3052- . , 9/10/2013 16.K.2. Naples, Florida 34109 Tel: (239)262-2141 Fax: (239)262-2342 Counsel for Plaintiff Amok Paop11 nf11 Packet Page-3053- 9/10/2013 16.K.2. • • ' RESOLUTION NO. 95- 632 A RESOLUTION SETTING FORTH THE POLICY OF THE BOARD OF COUNTY COMMISSIONERS WITH REGARD TO PROVIDING A LEGAL DEFENSE AND PAYING LEGAL EXPENSES OF COUNTY COMMISSIONERS, COUNTY STAFF AND COUNTY ADVISORY BOARD MEMBERS. • WHEREAS, the Board of County Commissioners and the Collier County management and legal staff are constantly presented with the necessity for making decisions regarding all phases of County policy, management and legal counsel, respectively; and WHEREAS, local governments and their employees have recently become subject to increasing numbers of lawsuits based upon state and federal laws; and WHEREAS, it is essential to the effective operation of County government that policy, management and legal decisions be made competently, in the public interest, and with the threat of personal liability for board and staff members for "'""141 making said decisions being maintained at a minimum so as to avoid the "chilling effect" on the proper and diligent performance of public duties recognized by the Florida Supreme Court in Thornber v. City of Fort Walton Beach, 568 So.2d. 914 (1990) ; and WHEREAS, Florida statutory and case law, as well as Attorney General opinions (hereafter referred to as "AGO"), set forth the requirements and discretion which are afforded to the local governing body to formulate a policy regarding the provision of counsel and payment of legal expenses for Board members, County staff and advisory board members who are involved in litigation arising out of or in connection with the performance of official duties and while serving a valid public purpose; and WHEREAS, Collier County insurance policies currently include County employees as well as Board members and members of the Administrator's and County Attorney's staff within the llikscope of coverage, provided that said persons are acting within the scope of their employment and do not act criminally or fraudulently; and -1- Packet Page-3054- • 9/10/2013 16.K.2. • . Amok WHEREAS, the Board of County•Commissioners (hereafter also referred to as "Board") desires to hereby set forth and formalize its policy with regard to the provision of legal counsel and the payment of legal expenses incurred by County Commissioners and administrative and legal staff so as to promote competent decisions and conduct in the public interest while reducing the threat, intimidation and chilling effect on performance of official duties created by potential personal liability for County Commissioners and County staff members while acting in the scope of their official duties and while serving a valid public purpose. WHEREAS, the various advisory boards, quasi-judicial boards and regulatory boards (hereafter also collectively referred to as "advisory board(s)") formed by the Board of • • . County Commissioners, and the members thereof who are appointed I. by the Board of County Commissioners, serve a critical function • with regard to the operation of Collier County Government; and WHEREAS, the members of such boards serve on a volunteer' • basis without compensation for the time spent in performing their duties and functions; and WHEREAS, said boards and board members are regarded by the • • Board of County Commissioners as being within the umbrella of ' legal protection afforded to the Board of County Commissioners and other Collier County employees; and WHEREAS, the Board hereby desires to set forth and formalize its policy with regard to the provision of legal counsel and the payment of legal expenses incurred by advisory board members so as to promote competent decisions and conduct in the public interest while reducing the threat, intimidation - • and chilling effect on performance of official duties created by potential personal liability for advisory board members while acting in the scope of their official duties and while • serving a valid public purpose. NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: -2- Packet Page -3055- • 9/10/2013 16.K.2. ..J 1. Definition' of "County person(s)": As used in this Resolution, the term "County person(s)" shall mean and include the members of the Board of County Commissioners, the County Administrator and his staff, the County Attorney and his staff, all employees of the Board of County Commissioners as well as the Collier County Airport Authority Director and his staff, the Director and staff of any other County-created authority, the officers and staff of any dependent or other special district for which the Collier County Board of County Commissioners is the governing body or ex-officio the governing body thereof, and any person appointed by the Board of County Commissioners to a Collier County Advisory Board, quasi-judicial board or regulatory board formed by the Board of County Commissioners of Collier County, Florida. 2. Pursuant to Section 121.07, Florida Statutes, and Thornber v. City of Fort Walton Beach. 568 So.2d 914 (Fla. 1990), the Board hereby resolves to provide legal representation to County persons in civil actions and in civil rights actions subject to the limitations set forth herein. a. Legal representation shall be provided in civil actions and in civil rights lawsuits only if the litigation involving the County person to be represented arises out of or in connection with the performance of official duties and while said County person was serving a valid public purpose. No representation shall be provided in tort actions if the County person acted or failed to act in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property. No representation shall be provided to any County person in a civil action or civil rights action where said County person acted or failed to act with intent to harm. No representation shall be provided in any case -3- Packet Page-3056- . 9/10/2013 16.K.2. 4 Alli where the County person has willfully failed to follow the legal advice furnished by the Office 1 of the County Attorney, unless the Board of County Commissioners specifically finds,-.at a public meeting, that said failure to follow legal advice was for reason(s) within the County person's scope of employment and served a valid public purpose. b. Collier County shall at all times have the discretion to determine whether to directly represent such individual through the County Attorney's office or to select counsel to represent said County person in the civil action or civil rights action. If a County person chooses to obtain private legal counsel without prior authorization from Collier County, all AI Ilk fees and/or costs incurred by such person shall be the sole responsibility of said person and Collier County shall accept no responsibility for payment of legal fees and/or costs. c. Any legal fees and/or costs properly payable under this Policy must be reasonable in amount. d. Pursuant to Section 111.07, Florida Statutes, any attorney's fees and/or costs paid or incurred by the County for any County person who is found to be personally liable by virtue of acting outside the scope of employment, in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human ` ' rights, safety or 'property, may be recovered by the County in a civil action against such County person. e. Notwithstanding anything else stated in this section or this Resolution, the Board shall have the sole and absolute discretion allowed by -4- Packet Page -3057- • 9/10/2013 16.K.2. Section 111.07, Florida Statutes, as well as by applicable case law, to not provide legal representation and to instead reimburse any County person for reasonable attorney-, fees and/or costs in the event that said County person prevails in the civil or civil rights action. 3. Pursuant to Sections 111.071 and 111.072, Florida Statutes, the County shall pay for final judgments, settlements and/or costs involving County persons in civil actions and in civil rights actions subject to the limitations provided herein. a. Collier County shall pay final judgments, settlements and/or costs involving County persons only where the litigation arose out of 1 or in connection with the performance by the County person of official duties and while • serving a valid public purpose. No final judgment, settlement or costs shall be paid for by the County in a civil action or a civil rights action if the County person against whom the final judgment, settlement and/or costs have been imposed has acted or failed to act with intent to harm. The County shall not pay any final judgment, settlement and/or costs in tort actions where a County person has acted or failed to act with bad faith, malice or with wanton and willful disregard of human rights, safety or property. No judgment and/or costs ' ' shall be paid in any case where the County person has willfully failed to follow the legal advice furnished by the Office of the County Attorney, unless the Board of County Commissioners specifically finds, at a public meeting, that said failure to follow legal -5- Packet Page-3058- - 9/10/2013 16.K.2. . advice was for reasons within the County person's scope of employment and served a valid I public purpose. b. Any final judgments, settlements and/or 'costs paid or incurred by the County shall be in strict adherence with the sovereign immunity recovery limits set forth in Section 768.28, Florida Statutes. c. If the County person has had private legal representation in the case, contrary to the provisions of Section (2) (b) of this Policy,+any final judgment, settlement and/or costs imposed • shall be the sole responsibility of said person and Collier County shall accept no responsibility for payment of the final (• judgment, settlement and/or costs. d. Pursuant to Section 111.071(4), this section is pot intended to be a waiver of sovereign immunity or a waiver of any other defense or immunity to such lawsuits. 4. In cases where a County person is formally charged with a criminal violation, the County shall pay the legal fees and/or costs incurred by said County person only under the following circumstances: a. The charges against the County person arose out of or in connection with the performance of official duties and while serving a valid public purpose. b. The County person has been acquitted or the - ' charges dismissed. Z,omelo v. City of Sunrise, 423 So. 2d. 974 (4th DCA 1982) , pet. for rev. dismissed at 431 So.2d. 988 (Fla. 1983) , and AGO • 89-33. Al IN i c. The legal fees and/or costs charged are = *` reasonable in amount. -6- Packet Page -3059- • 9/10/2013 16.K.2. d. The county person has first notified the County administration and legal staff of the pendency of the charges and has permitted the County the opportunity to either directly provide counsel or to allow said County person to choose his/her own counsel. e. The charges have not resulted from the willful failure of the County person to follow the legal advice furnished by the Office of the County Attorney, unless the Board of County commissioners specifically finds, at a public meeting, that said failure to follow legal advice was for reasons within the County person's scope of employment and served a valid • .public purpose. f. The legal fees and/or costs incurred by a County • person during the investigatory, pre-charge stages of a criminal case shall be paid by the County only for proceedings involving potential criminal liability for the County person and where the allegations are ultimately determined to be unfounded and to have arisen from conduct related to the performance of official duties and while serving a valid public.purpose. AGO 94-11. The provisions of Subsections 4b, c, d and e of this Resolution shall also govern these cases. g. In the event that the County person has been provided legal representation by the County and - " the County person is found guilty of a criminal charge, the County may recover from the County person in a civil action all legal fees and/or tik costs paid or incurred by the County. S. The County shall pay legal fees and/or costs incurred by County persons in cases involving formal ethics charges -7- Packet Page-3060- • 9/10/2013 16.K.2. Amok subject to the limitations provided herein: a. The ethics charges arose from conduct related to the performance of official duties and while "serving a valid public purpose. Ellison v.Reid, 397 So. 2d. 352 (1st DCA 1981) and AGO's 85-51 and 90-74. b. The County person has prevailed and successfully defended against the ethics charges. c. The legal fees and/or costs charged are reasonable in amount. d. The County person has first notified the County administration and legal staff of the pendency of the charges and has permitted the County the opportunity to either directly provide counsel or to allow said County person to choose his/her 4111 own counsel. ANN • e. .. The charges have not. resulted from the .willful failure of the County person to follow the legal • advice furnished by the Office of the County Attorney, unless the Board of County Commissioners specifically finds, at a public meeting, that said failure to follow legal advice was for reasons within the County person's scope of employment and served a valid public purpose. f. The legal fees and/or costs incurred by a County person during the investigatory, pre-charge stages of an ethics complaint shall be paid by the County only for proceedings involving = . potential civil and/or criminal liability and/or ethics sanctions for the County person and where the allegations are ultimately determined to be unfounded and to have arisen from conduct • related to the performance of official duties and while serving a valid public purpose. AGO -8- Packet Page -3061- 9/10/2013 16.K.2. • 94-11. The provisions of Subsections 5b, c, d and e of this Resolution shall also govern these cases. g. In the event that the County person has.. been provided legal representation by the County and the County person is found by the Florida Ethics Commission or other appropriate tribunal having jurisdiction over the case to have committed ethical violations, the County may recover from the county person in a civil action all legal fees and/or costs paid or incurred by the County. h. Nothing in this section shall be construed to preclude the County Attorney from requesting formal or informal ethics opinions on behalf of one or more commissioners. 11 6. The County shall pay legal'fees and/or costs incurred by County persons in cases involving non-county administrative and/or regulatory proceedings and/or formal charges subject to the limitations provided herein: a. The proceedings and/or charges arose from conduct related to the performance of official duties and while serving a valid public purpose. b. The County person has prevailed and successfully defended against the proceedings and/or charges. c. The legal fees and/or costs charged are reasonable in amount. d. The County person has first notified the County Administration and legal staff of the pendency - ' of the proceedings and/or charges and has permitted the County the opportunity to directly provide counsel or to allow said County person to choose his/her own counsel. e. The charges and/or proceedings have not resulted from the willful failure of the County person to -9- r— Packet Page-3062- 9/10/2013 16.K.2. 111, Aolik follow the legal advice furnished by the Office of the County Attorney, unless the Board of County Commissioners specifically finds, at a public meeting, that said failure to follow legal advice was for reasons within the County person's scope of employment and served a valid public purpose. f. The legal fees and/or costs incurred by the County person during the pendency of the proceedings and/or the investigatory, pre-charge stages of an administrative or regulatory case shall be paid by the County only for proceedings and/or charges involving potential civil and/or criminal liability and/or administrative/ regulatory sanctions for the County person and illwhere the allegations are ultimately determined AIWA to be unfounded and to have risen from conduct , related to the performance of official duties and while serving a valid public purpose. AGO 94-11. The provisions of Subsections 6b, c, d and e of this Resolution shall also govern these cases. . g. In the event that the County person has been provided legal representation by the County and the County person is found, by an administrative or regulatory agency or other appropriate tribunal having jurisdiction over the case, to have civil or criminal liability and/or to have violated administrative or regulatory rules, the - County may recover from the County person in a civil action all legal fees and/or costs paid or incurred by the County. • 7. The County shall pay legal fees and/or costs incurred by individual members of the Board of County Commissioners for instituting, as opposed to defending, litigation only where all -1d- Packet Page-3063- 9/10/2013 16.K.2. of the following circumstances are present: a. The litigation arises from or in connection with the Board members performance of official duties and the litigation serves a valid public purpose. b. This section shall apply only to members of the Board of County Commissioners and not to any other "County person" defined in Section 1 of this Resolution. c. The Board member must prevail in said litigation. d. The legal fees and/or costs are reasonable in amount. e. The Board member shall have first notified the Board of County Commissioners, the County .Administrator and the County Attorney prior to the commencement of .the litigation and shall have permitted the County the opportunity to either directly provide counsel or to allow said Commissioner to choose his/her own counsel. f. The litigation has not resulted from the willful failure to follow the legal advice furnished by the Office of the County Attorney, unless the • ` Board of County Commissioners specifically finds, at a public meeting, that said failure to follow legal advice was for reasons within the Commissioner's scope of employment and served a valid public purpose. g. In the event that the Commissioner has been .. provided legal representation by the County and the Commissioner does not prevail in the litigation, then the County may recover from the ' Commissioner in a civil action all legal fees and/or costs paid or incurred by the County. 8. All preliminary decisions administering and -11- Packet Page-3064- • 9/10/2013 16.K.2. i 4 fa om. implementing this policy shall initially be made by the County Administrator and/or his designee and the Office of the County Attorney in cooperation and consultation with each other's respective offices. Both offices are hereby delegated the power to make any lawful and reasonable investigation and evaluation of cases arising under this policy. Said evaluation shall take into account all available relevant information in addition to the nature, type, number and substance of the allegations contained in any pleadings filed and/or served in any legal proceeding. All final determinations regarding the implementation and administration of this policy shall be made only by the Board of County Commissioners which is in accordance with AGO's 85-51, 89-22, 90-74 and 91-58. The Board shall also make all final determinations regarding the provision of a legal defense and/or paying legal expenses of County persons f • or any type of legal claim or suit arising from a County person's performance of official duties while serving a valid public purpose if said type of claim or suit is not specifically addressed by this Resolution. 9. Collier County Board of County Commissioners Resolution Nos. 85-126 and 85-178 are hereby repealed and superseded in their entirety. This Resolution adopted after motion, second and majority vote favoring same. . •DATED: //y/?-- •ATTEST:%•'.> BOARD OF COUNTY COMMISSIONERS DWIGK1'E:-.BROOK, Clerk COLLIER COON , FLORIDA r rev.41 ._ ; ._-� By: ' ,BETTYE . JTTHEWS, Chairman v Approved as to form and • legal"suTficiency: (/)-71;v,• 7.67/717,(,-r? • -Ramiro Man L • ich Chief Assistant County Attorney nn ilk -12- ■ ;,�, Packet Page -3065-