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Agenda 03/10/2009 Item #12A Agenda Item No. 12A March 10, 2009 Page 1 of 12 EXECUTIVE SUMMARY Recommendation that the Board of County Commissioners provides direction whether to amend Ordinance No. 01-55 (the Advisory Board Ordinance) with respect to term limits. The Ordinance presently limits an advisory board member to two terms, absent unanimous Board approval for an additional term. OBJECTIVE: That the Board of County Commissioners ("Board") provides direction to the County Attorney whethcr they wish to amend Ordinance No. 01-55 (the Advisory Board Ordinance) with respect to tenn limits. CONSIDERATIONS: During the Board's January 13, 2009 meeting, two members of the Collier County Productivity Committee failed to gain reappointment as they had already served two consecutive tcrms and did not receive unanimous vote of the Commission. A discussion of the matter followed, a number of questions concerning this process were askcd, and I advised the Board that I would provide a memorandum outlining the issue and giving the Board various options that it could pursue. A copy of that January 14, 2009 memo is included as part of this Agenda package. The issue was again raised at the Board's prior meeting, and I was directed to bring back an Executive Summary summarizing the issue for purposes of Board discussion. Section 2-832 of the Collier Code of Laws and Ordinances, which codified Ordinance No. 01-55, provides as follows: Sec. 2-832. Term of office. (a)Terms of office shall be staggered. (b )Terms of office for board members shall be limited to two consecutive terms of service on any one board; provided, however, that appointment of a board member to an initial term of one year shall not be considered a "term of office" for purpose of the limitations set forth in this section, and such members shall be entitled to serve two additional terms if so appointed. (c)Appointments to fill a vacancy for the remainder or balance of a term of office shall be considered a term of office for the purpose of the limitations set forth in subsection (b), above, only if the remainder of the term to be served exceeds 50 percent of the full term. (d) By unanimous vote of the commission, the limitations set forth in subsection (b) above may be waived. (e)Nothing set forth in this section shall prohibit any individual from being reappointed to a board after a hiatus of two years. (f)All members of boards created by the commission shall serve at the pleasure of the commission and may automatically be removed by a mqiority vote of the quorum of the commiSSIon. _. Simply put, the Advisory Board Ordinance creates a term limit for all advisory board members of two terms, with the ability of the Board of County Commissioners to waive this limitation by unanimous vote. Agenda Item No. 12A March 10, 2009 Page 2 of 12 The first issue is given the vote, when is the earliest that these two members could be reappointed to serve? Under the Ordinance, these two individuals would have to wait two years before being reappointed to the Productivity Committee. The second issue is whether the Board could amend the Advisory Board Ordinance for the purpose of reappointing one or both of these members. It is the opinion of the County Attorney that the Board could do so in the following manner: I. Amend the Ordinance in one of two ways: (a) Eliminate term limits, and require simple majority action for any advisory board applicant irrespective of the number of tenns served, or (b) Maintain term limits, but change the unanimous requirement to supermajority approval for an applicant who has served two terms. 2. Following amendment of the Ordinance, direct staff to readvertise the position. If any of the former members apply, they would qualify to serve under the new Ordinance. FISCAL IMPACT; None. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: None at this point. This is a regular agenda item requiring simple majority vote. -JAK RECOMMENDATION: That the Board provides direction to the County Attorney whether they wish to amend Ordinance No, 01-55 (the Advisory Board Ordinance) with respect to term limits. PREPARED BY: Jeffrey A. Klatzkow, County Attorney Page ] of 1 Agenda Item No. 12A March 10, 2009 Page 3 of 12 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 12A Meeting Date: Recommendation that the Board of County Commissioners provides direction whether to amend Ordinance No. 01-55 (the Advisory Board Ordinance) with respect to term limits. The Ordinance presently limits an advisory board member to two terms, absent unanimous Board approval for an additional term. 3/10/20099:0000 AM Prepared By Jeff Klatzkow Assistant County Attorney Date County Attorney County Attorney Office 3/2/2009 12:31 :20 PM Approved By Jeff Klatzkow Assistant County Attorney Date County Attorney County Attorney Office 3/2/20093:38 PM Approved By Mark Isackson Budget Analyst Date County Manager's Office Office of Management & Budget 3/3/200912:01 PM Approved By James V. Mudd County Manager Date Board of County Commissioners County Manager's Office 3/3/20093:05 PM file:/ /C;\Agenda T est\Export\ 125-March%20 1 O. %202009\] 2. %20COUNTY%20A TTORNEY... 3/4/2009 TO: FROM: DATE: RE: Agenda Item No. 12A March 10, 2009 Page 4 of 12 OFFICE OF THE COUNTY ArrORNEY MEMORANDUM Commissioner Donna Fiala, Chairman, District I Commissioner Frank Halas, Vice-Chairman, District 2 Commissioner Tom Henning, District 3 Commissioner Fred Coyle, District 4 Commissioner James N, Coletta, Dist~ Jeffrey A. Klatzkow, County Attorney ~ January 14, 2009 January 13, 2009 BCC Meeting, Item 9E Appointment of Members to the Collier County Productivity Committee During yesterday's Board Meeting, two present members of the Collier County Productivity Committee failed to gain reappointment as they had already served two consecutive terms and did not receive unanimous vote of the Commission. A discussion of the matter followed, a number of questions concerning this process were asked, and I advised the Board that I would get back to the Board with a memorandum outlining the issue and giving the Board various options that it could pursue, Section 2-832 of the Collier Code of Laws and Ordinances, which codified Ordinance No. 01-55 (the Advisory Board Ordinance) provides as follows: Sec, 2-832. Term of office. (a)Terms of office shall be staggered. (b)Terms of office for board members shall be limited to two consecutive terms of service on any one board; provided, however, that appointment of a board member to an initial term of one year shall not be considered a "term of office" for purpose of the limitations set forth in this section, and such members shall be entitled to serve two additional terms if so appointed. (c)Appointments to fill a vacancy for the remainder or balance of a term of office shall be considered a term of office for the purpose of the limitations set forth in subsection (b), above, only if the remainder of the term to be served exceeds 50 percent of the full term. (d)By unanimous vote of the commission, the limitations set forth in subsection (b) above may be waived. (e)Nothing set forth in this section shall prohibit any individual from being reappointed to a board after a hiatus of two years. (f)AlI members of boards created by the commission shall serve at the pleasure of the commission and may automatically be removed by a majority vote of the quorum of the commission. Agenda Item No. 12A March 10, 2009 Page 5 of 12 Simply put, the Advisory Board Ordinance creates a term limit for all advisory board members of two terms, with the ability of the Board of County Commissioners to waive this limitation by unanimous vote. The first issue is given the vote, absent a motion for reconsideration, when is the earliest that these two present members could be reappointed to serve? Under the Ordinance, these two individuals would have to wait two years before being reappointed to the Productivity Committee. The second issue is whether the Board could amend the Advisory Board Ordinance and, in effect, nullify yesterday's vote. After consulting with one of our local government outside counsels, Greg Stewart of Nabors Giblin, ifso inclined the Board could do the following: 1. Amend Sec. 2-852 in one of two ways, depending upon whether the Board wishes (1) simple majority action for any advisory board applicant irrespective of the number of terms served, or (2) to change the unanimous requirement to supermajority approval for an applicant who has served two terms. The amendments would look substantially as follows: Sec. 2-832. Term of office. Sec. 2-832. Term of office. (a)Terms of office shall be staggered. (b )TeIHls of office for board members shall be limited to two consecllti'/e terms of service on aR)' one boar.a; Jlro\'ided, however, that aj'lJlointment of a board member to an initial term of one year shall .not be considered a "teFffl of office" for pliIflose of the limitations set forth in t-!ris section, aRd Stich members shall be entitled to serve two additional terms if so aj'lflointed (C)".flJlointments to fill a ','acaRe)' for the remainder er llalaHce of a t8ffi1. ef office shall be considered a teffil ef office fur the pllIJlose of the limitations set forth in sHbsection (b), above, only if the remainder ofilie torm to be served e)[Ceeds 50 Jlercent of the ftill term. (d)By lH1animotis '/ete ef the cemmission, the limitations set forth in subsection (ll) above may be'lIaived. (e)NothiRg set forth in this sectien shall prohibit any in(!i-ridtial frem being reappointed to a board after a marns of P.yo years, (fQ)AlI members of boards created by the commission shall serve at the pleasure of the commission and may automatically be removed by a majority vote of the quorum of the commISSIOn. (c)The number ofterms for board members shall not be limited. See, 2-832. Term of office. (a)Terms of office shall be staggered. (b )Terms of office for board members shall be limited to two consecutive terms of service on any one board; provided, however, that appointment of a board member to an initial term of one year Agenda Item No. 12A March 10. 2009 Page 6 of 12 shall not be considered a "term of office" for purpose of the limitations set forth in this section, and such members shall be entitled to serve two additional terms if so appointed. c)Appointments to fill a vacancy for the remainder or balance of a term of office shall be considered a term of office for the purpose of the limitations set forth in subsection (b), above, only if the remainder ofthe term to be served exceeds 50 percent of the full term. (d)By unanilTl8lis supermaioritv vote of the commission, the limitations set forth in subsection (b) above may be waived. (e)Nothing set forth in this section shall prohibit any individual from being reappointed to a board after a hiatus of two years. (f)AII members of boards created by the commission shall serve at the pleasure of the commission and may automatically be removed by a majority vote of the quorum of the commission 2. Following amendment of the Ordinance, readvertise the position. 3. If the first amendment approach is taken, the Board may then appoint any qualified applicant it desires by simple majority vote, including either one or both of the present members whose appointment failed yesterday. If the second amendment approach is taken, the Board could appoint any qualified applicant it desires who has not served two terms by simple majority vote or, in the case of an applicant who has served two terms, by supermajority vote, including either one or both of the present members whose appointment failed yesterday. Consideration was given to amending the Ordinance retroactively, however, after researching this issue it was felt that doing so raised a number of legal concerns that the above approach avoids, with no advantage to the proposed approach. Although I believe that the Board may lawfully take this action, as with all new precedents I would caution the Board to give due consideration to the policies that would be both extinguished, and created, by amending this Ordinance. This Board previously decided it was important to create term limits for Advisory Board Members that could only be waived by unanimous vote. This empowers each of you to block a member of an advisory board from being reappointed after two terms. If the Ordinancc is amended, this power will be lost. One of the advantages of maintaining the status quo is that by its very nature, term limits eventually resolve various difficult issues, including those arising with age, which issue one Commissioner may be aware of but be reluctant to publicly discuss during the appointment process. Lastly, by amending this Ordinance tbe Board is also in effect circumventing its reconsideration policies. Should the Board seek such an amendment, future acts by the Board could likewise be circumvented by a substantially similar process. ').'345678" /" "0 ~ ~ /) ~.. I? ~ ~ I'J ~ ~ ~~~ ~ ~ \ 'f/::,\~W ; RDINANCE ESTABUSHING STANDARDS FOR CREATION ~ ,,\l \1 AND REVIEW OF COUNTY BOARDS AND PROVIDING FOR ~"i>~ 01,"~<iI' A POUCY DECLARATION; PROVIDING DEFINTIONS; ~nZ PROVIDING FOR CREATION OF NEW BOARDS; PROVIDING EXEMPTION; PROVIDING QUALIFICATIONS AND REQUIREMENTS FOR MEMBERSHIP; PROVIDING PROCESS OF APPOINTMENT; PROVIDING TERMS OF OFFICE; PROVIDING ATTENDANCE REQUIREMENT; PROVIDING SCHEDULE FOR REVIEW OF BOARDS; PROVIDING FOR REPEAL OF ORDINANCE NO. 86-41, AS AMENDED; PROVIDING FOR CONFUCT AND SEVERABILITY; PROVIDING FOR INCLUSION IN CODE OF LAWS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE. ceo rC' r-." Agenda Item No. 12A March 10, 2009 Page 7 of 12 ORDINANCE NO. 2001- " NOW, THEREFORE, BE IT ORDAINED BY THE BOARD Qi'-: COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: SECTION ONE: Policy Declaration. ';;'::", :P":p V3 It Is hereby declared to be the policy of the Board of County Commi~elS' of Collier County, Florida, to promote economy, efficiency and improve service in the transaction of the public business by County Boards. Nothing in this Ordinance shall be construed to prohibit or restrict the County Commission from amending or abolishing, at any time, any Board currently in existence or thereinafter created. SECTION TWO: Definitions. .-.. (".'" ~ C') '--;'\ n -' .- C\WNTl"" ~ ~:\ -- 0 z:: '.. The term "Board" is defined to include every agency, advisory board, regulatory board, quasi-Judicial board, committee, task force or any other group created and funded in whole or in part by the Board of County Commissioners. The temn 'Commission" is defined as the Board of County Commissioners of Collier County, Florida. SECTION THREE: Creation of New Boards. A. All Boards created after the effective date of this Ordinance shall be created by ordinance only, except for Ad-Hoc or Task Force Committees. Such ordinance shall set forth the Board's purpose; functions; powers; responsibilities; jurisdiction; membership requirements and restrictions; terms and conditions of appointment to and removal from the Board; and the specific staff support necessary to prepare an annual report, either oral or written, to be presented to the Commission. B. Prior to the advertised public hearing held for the adoption of said ordinance, the County Manager shall submit to the Commission a report setting forth foliowlng information concerning the proposed new Board: 1) Whether the establishment of the board will create sufficient betterment to the community to justify the Commission's delegation of a portion of Its authority. 2) Whether another Board, either public or private, already In existence, couid serve, or is serving the same purpose. Agenda Item No. 12A March 10, 2009 Page 8 o( 12 3) The costs, both direct and indirect, of establishing and maintaining the new Board, 4) Whether creation of the new 6aard is necessary to enable the County to obtain state or federal grants or other financing. 5) Whether the Board should have bonding authority. 6) Whether creation of a new Board is the best method to achieve the benefit desired, SECTION FOUR: Exemption to Ordinance Requirement: Ad Hoc Committees and Task Force Committees. The Commission may, by resolution, appoint an Ad-Hoc or Task Force Committee for a speCific project, if the duration of the Committee does not exceed three (3) years duration. The resolution must set forth the duties and responsibilities of the Committee and contain language that automatically dissolves the Committee within the specified year from the date of adoption of the Committee members by the Commission. SECTION FIVE: Qualifications and Requirements for Membership on Boards. A. All members of County Boards shall be permanent residents and electors of Collier County and should be reputable and active in community service. The foregoing requirement may be exempted, however, if an ordinance creating a board specifies the need for membership outside Collier County's boundaries. In addition, all Board members should have demonstrated an Interest in the activity or service, which Is the purpose of the 6aard. The provisions of this paragraph may be exempted, however, if an ordinance creating a board specifies the need for membership outside Collier County's boundaries, B. Any member of a County Board who ceases to be a resident of Collier County during his or her term of office shall immediately advise the Commission of such change in status. Upon such notice, the Commission shall declare the position to be vacant and shall promptly fill same pursuant to the provisions of Section Six, herein. C. The Commission's primary consideration in appointing Board members shall be to provide the 6aard with the technical, professional, financial, business or administrative expertise necessary to effectively accomplish the Board's purpose. Categories of expertise referenced by County Boards' Ordinances as qualifications for Board membership are considered to be primarily directory and not mandatory. D. No person shall serve on more than two County Boards simultaneously. If application Is made for service on a third Board, the applicant must resign simultaneously from one of his or her current Board positions, or the application for a third Board shali be disqualified. This provision, however, may be waived to aliow for service on additional Boards provided the Commission votes unanimously to waive such provision. E. No member of any County Board shall become a candidate for an elective political office and continue to serve on such 6aard during his or her candidacy. Should any County Board member become a candidate for an elective political. office, such 2 Agenda Item No. 12A March 10, 2009 Page 9 of 12 candidacy shall be deemed a tender of resignation from such Board and the Board shall immediately advise the Commission in writing of said resignation. The Commission shall deem the position vacant upon receipt of written notice of said resignation. The Board member shall not serve at any meetings after his or her position becomes vacant pursuant to this Ordinance. F. The commencement of a legal challenge by a Board member as a plaintiff In a lawsuit against Collier County shall constitute a conftlct of interest with Collier County and shall be deemed a tender of resignation from such Board. The County Board member's position shall automatically be considered vacant and the Commission shall promptly fill same pursuant to the provisions of Section Six, herein. G, No member of any County Board, as defined herein, shall print or create, or have printed or created, or use or distribute any business or infonmational card depicting the County logo or in any way representing such Board member as a representative of Collier County or as a County Board member. The County Manager or his or her designee may, upon request and prior approval in wrtting, authortze the County Board members to obtain a County photo Identification card Identifying such members as a County advisory Board member. SECTION SIX: Process of Appoinbnent. A. Vacancies occurring on any Board shall be publicized, but need not be advertised, in a publication of general circulation within the County, and vacancy notices are to be posted in the County libraries and the County Government Center. B. Prior to making appointments to Boards, staff shall provide the Commission with a list outlining the qualifications and demographic background of each candidate for Board membership, along with a list detailing the qualifications and demographic backgrounds of present members seeking reappoinbment on each board to which an appointment is being made. SECTION SEVEN: Term of Office. A. Terms of office shall be staggered. B. Terms of office for Board members shall be limited to two consecutive terms of service on anyone Board; provided, however, that appointment of a Board member to an initial temn of one year shall not be considered a "term of office" for purpose of the limitations set forth In this Section, and such members shall be entitled to serve two additional terms If so appointed. C. Appointments to fill a vacancy for the remainder or balance of a term of office shall be considered a term of office far the purpose of the limitations set forth in Section Seven B, above, only if the remainder of the term to be served exceeds fifty percent (50%) of the full term. D. By unanimous vote of the Commission, the limitations set forth in Section Seven B above may be waived. E. Nothing set forth In this Section shall prohibit any individual fram being reappointed to a Board after a hiatus of two (2) years. 3 Agenda Item No. 12A March 10, 2009 Page 10 of 12 F. All members of Boards created by the Commission shall serve at the pleasure of the Commission and may automatically be removed by a majority vote of the quorum of the Commission. SECTION EIGKT: Attendance Requirement. It is the intent and strang desire of the Commission that there be full attendance of advisory Board members at all meetings of the Boards, recognizing, however, that it may be necessary for Board members to be absent from a meeting due to unusual or emergency circumstances. Nevertheless, full attendance at Board meetings is encouraged and necessary for the proper operation of the Boards and In furtherance thereof the following requirements are established: A. Any Board member who is absent for more than one-half of the Board's meetings in a given fiscal year shall be deemed to have tendered his or her resignation from such Board. The Commission shall, as soon as practicable after such resignation, declare the posrtion to be vacant and shall promptly fill same pursuant to the provisions of Section Six herein. The Boar.d members shall not serve at any meetings after his or her position is dedared vacant by the Commission. B. In the event that any Board member is absent from two consecutive meetings without a satisfactory excuse acceptable to the Board chairperson, the Board chairperson shall state such fact at the next regularly scheduled Board meeting and shall thereafter notify, in writing, the Executive Manager to the Commission of the Board member's failure to attend without a satisfactory excuse. The Commission shall review the Board chairperson's notification at the Commission meeting and shall declare the Board member's position to be vacant if the Commission concurs that the Board member was absent from two consecutive Board meetings without a satisfactory excuse, and shall promptly fill same pursuant to the provisions of Section Six herein. The Board member shall not serve at any meetings after his or her position Is declared vacant. C. A member of a Board shall be deemed absent from a meeting when he or she is not present during at least seventy five percent (75%) of the meeting. SECTION NINE: Review of Boards. Each Board shall be reviewed In the following manner: A. All Boards shall be reviewed every four (4) years from the year the Board was first established. B. The County Manager or his designee shall proVide notice to the Board prior to Its date of review. On or before January 15'" of the year in which a Board Is to be reviewed, its Chairperson shall submit to the County Manager a report setting forth the following infomnatlon regarding the Board: 1.) Whether the Board is serving the purpose for which it was created. 2.) Whether the Board is adequately serving current community needs. 3.) A list of the Board's major accomplishments for the preceding twelve month period. 4 Agenda Item No. 12A March 10, 2009 Page 11 of 12 4.) Whether there is any other Board or agency, either public or private, which is serving or would better serve the purpose far which the Board was created. 5.) Whether the ordinance creating the Board should be amended to allow the board to more adequately serve the purpose for which it was created. 6.) Whether the Board's membership requirements should be modified. 7.) The cost, both direct and indirect, of maintaining the Board, C. On or before February 15th of the year in which a Board is to be reviewed, the County Manager shall deliver to the Commission the report submitted by the Chairperson of each Board, pursuant to Section Nine (B) of this Ordinance, together with any recommendation or comments the County Manager may have. In order to assist the County Manager and the Commission in the evaluation of the Chairperson's report, the County Manager and Commission may review applicable minutes of meetings of the Boards. All Boards shall be required to forward the minutes of all Board meetings to the Commission in a timely manner. D. During March of the ye.ar In which a Board Is to be reviewed, the Chairperson shall make an oral presentation to the Commission. Said presentation shall be based upon the report submitted to the County Manager pursuant to Section Nine (B) of this Ordinance. At the conclusian of said oral presentation any Commissioner may request the formation of a subcommittee consisting of three (3) members of the Cammlsslon. Said subcommittee shall evaluate the Chairperson's report, the County Manager's recommendations and any other information it deems relevant to determine whether the Board shall continue in its present form. The subcommittee shall report to the Commission not iater than within ninety (90) days after their initial meeting, E. At the conclusion of this review process, the Commission shall determine whether to abolish, continue, consolidate or modify the Board for the ensuing four years. SECTION TEN: Repeal of Ordinance No. 86-41, As Amended. Collier County Ordinance No, 86-41, as amended by Ordinance No. 92-44, 98-46, and 2000-24, is hereby repealed in its entirety. SECTION ELEVEN: Conflict and Severability, In the event this Ordinance confilcts with any other ordinance of Collier County or other applicable law, the more restrictive shall apply. If any phrase or portion of the Ordinance Is held invalid or unconstitutional by any court of competent jurisdiction, such portJon shall be deemed a separate, distinct and Independent provision and such holding shall not affect the validity of the remaining portion. SECTION TWELVE: Inclusion in the Code of Laws and Ordinances. The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinances of Collier County, Florida. The sections of the Ordinances may be renumbered or relettered to accomplish such, and the word "ordinance" may be changed to "section," "article," or any other appropriate word. All references In the 5 Agenda Item No. 12A March 10, 2009 Page 120f12 Code of Laws and Ordinances to Ordinance No. 86-41 and its amendments shall be changed to reflect the number assigned to this Ordinance. SECTION THIRTEEN: Effective Date. This Ordinance shall become effective upon receipt of notice from the Secretary of State that this Ordinance has been filed with the Secretary of State. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida thiS..,;/.J".o day of October, 2001. .",\l\,"l1H:""lf, .,;_; A~{~~~~.~:"~.~-,:~;>~,,~_ :~',-~~,;, DWIf'!tJT::!;..~~~K, ~erk' :tl:::l::.l~.~n"s BY:~;~&?"'~ ~,c.. .... Deputy Clerk BOARD OF COUNTY COMMISSIONERS, COLUER COUNlY, FLORIDA. BY'~ 'JAMES . CARTER, Ph,D" Chairman Approved as to form and legal sufficiency: This orc!itloncr> :,:,..,.-1 with th~ Secretory of ,).!,.l:l,.1 l~""~.... Olliee the ~o'(of~,.~ end ocknow!edgemr:'nt of that filing received this ~doy of ~-r:/~~~( , y Oooputy CI..... ~~~ r12'Jt, ~ t/ David C. Weigel County Attorney h: publiqkay lordinances 6