City of West Palm Beach

City Commission Training

April 24, 2015

AGENDA• Opening Remarks - Mayor• Form of Government & Charter Provisions• Sunshine Law & E-Liability•Procurement• Resolutions, Ordinances & Quasi Judicial• Lawsuits •Ethics• Types of Meetings• Media Relations• Discretionary Accounts• Travel Policy• Other

Charter /Form of Government

Form of Government

MUNICIPAL CORPORATION

Voters approved Strong Mayor form of Government in 1993

Charter provision specifies: Mayor – Commission form of government

Mayor’s Charter Powers MUNICIPAL POWERS

Executive PowersMayor is Chief Executive Officer

Appointment and Removal Powers City Administrator Chief of Police Fire Chief City Attorney Department Heads All Boards and Committees

Prepares Budget Sets Agenda Runs the day to day operations of the City

Mayor’s Voting Powers Votes only to break a tie voteVeto Power

Veto legislation within 48 hours of enactment Disapprove or reduce appropriations within 48 hours Cannot veto emergency ordinances

Commission Charter Powers

Legislative PowersCity Commission

All powers not delegated to Mayor or Internal AuditorOverrides Mayor’s veto with 2/3 majority voteAppoint or remove Internal AuditorApprove Budget Conduct Investigations in exercise of legislative powers

THOU SHALL NOT … THOU SHALL …

I. Except ratifications, direct or request the appointment or removal of any person to office

II. Give orders or direct inquiries to any subordinate of the Mayor

I.Vote on each matter submitted unless prohibited by law

II.Direct inquiries to the City Administrator

III.Ratify appointment of Chiefs of Police and Fire Rescue and City Attorney

Sunshine Law

Sunshine Law

Public Meetings:

Entire decision-making process in the “sunshine” – How & Why decisions made

______________________

3 Requirements:1. Meetings open to the public

2. Reasonable notice of meetings

3. Minutes of the meetings must be taken

Sunshine Law

What “meetings” are subject to the Sunshine Law?

Any gathering or communication (formal or informal)

2 or more Commission members

Discuss matter which will foreseeably come to the commission for action ____________________________________

Exceptions to the Sunshine Law Attorney-Client Session:

Confined to settlement negotiations or strategy session related to litigation expenditures.

Other procedural requirements apply:Attendance is strictly limited to Commissioners, City Administrator,

City Attorney and court reporterNo formal action is takenMeeting is recorded by a court reporter. The transcript is sealed until

conclusion of the litigation – at which time it becomes a public record. Collective Bargaining Executive Session:

Very limited in scope Confined to strategy discussion between the City Administrator and

legislative body regarding actual or impending collective bargaining negotiations

City Administrator and members of negotiation team are allowed to be present

Consequences for Violation of the Sunshine Law

City action taken in violation of Sunshine Law may be void.

Knowing violation: 2nd degree misdemeanor. Official may be removed from office. Not more than 60 days jail and or $500 fine.

Unintentional violation: Noncriminal infraction Fine up to $500

Attorneys’ fees and court costs

E-Liability

We Have All Heard Of Dangers Associated with Computers

VirusesScamsOnline predators Identify theftSpyware

A less known danger relates to the use of e-mail - or “e-liability”

General thoughts regarding “e-liability”

1. E-mail presents a relatively new and unique problem.

5. E-mails have created lots of problems for employees – as well as employers.Loss of jobsBig dollars in settlementsEmbarrassment

2. E-mails have a long “shelf life.”

3. E-mails are “discoverable” – and subject to public records requests.

4. E-mails are powerful evidence.

“If a picture is worth a thousand words – an e-mail may be worth ten thousand.”

6. Individual employees can be sued.

F.S. 768.28Common Law

7. Litigation is only fun for the lawyers!

Specific thoughts regarding e-mail...

1. Know the City’s e-mail policy.

“Ignorance is not bliss.”

2. Leave out personal commentary – strictly business.

“Just the facts”

3. Stick to the absolute minimum.

“Less is best”

4. When in doubt – don’t!

Once you push the button – its gone!

Better Safe than Sorry!

Procurement

Procurement Code

Designed to:Maximize open competition & purchasing value of public

funds.

Promote fair treatment of contractors & vendors.

Ensure integrity & promote public confidence in the process.

Procurement

Lobbying is Prohibited !From advertisement until contract execution

Procurement Opportunities Report

All City procurement opportunities have “No Lobbying” provision.

Contractors/vendors prohibited from contacting Mayor or Commissioners.

Avoid speaking with contractors, consultants or their representatives about pending procurement.

Direct Procurement Inquiries to Procurement Official only

Avoid communication with staff regarding pending procurements.

►A simple inquiry as to status can be interpreted as an attempt to influence.

► May result in unintended disqualification of the contractor.

Commission’s Participation in Procurement Process:

1. Approval of budget detail = authority to procure.

2. Procurement Opportunities Report. 10 days to make written request to Mayor that

Commission approve contract.

3. “Face of the City” approval. Approval of design of projects or improvements that will change the above-ground appearance.

Commission’s Participation in Procurement Process:

4. Contracts which require Commission approval:

Contract for construction of buildings and structures.

(except utility systems)

Contracts for insurance.Required by state statute or City Code. Contracts where requirements of procurement code not fully

met. Procurement process initiated prior to availability of funds.

(awaiting grant funds)

Commission’s Participation in Procurement Process:

5. Procurement Protest Appeal.

Decision of Procurement Official appealed to City Commission. Hearing before Commission Approve or reject Procurement Official decision. Further appeal to 15th Judicial Circuit Court.

Procurement

Selection – Best Value to City ● Price / Rates – not determining factor. ● Content of bid or proposal.

● Experience & expertise.

● Adherence to specifications.

● Capacity to perform – personnel, equipment, etc.

● Ability to meet schedule.

● Financial viability – bonds, insurance.

● Past performance – ability to work with staff.

● Other factors specific to the procurement.

● Small business participation & Equal benefits.

● Impact to local economy.

● Conviction / offense re integrity, honesty, ethics.

LEGISLATION

Resolution and Ordinances

Resolution administrative expression of the governing body which is

an expression of temporary character Ordinances

official legislative action of the governing body which is a regulation of permanent nature and enforceable as a local law

Statutory Requirements for Adoption

Introduced in writing Embrace one subject and connected matters Ordinances must be read by title or in full on at

least 2 separate days Ordinance to be published at least 10 days prior to

adoption

Commission Role in Quasi-Judicial Hearings

Legislative v. Quasi-JudicialLegislative

Making Policy Initial Zoning, comprehensive rezoning or rezoning affecting

a large portion of the public

JudicialApplying policy based on evidence Rezoning action that requires application of general laws or

rules to specific individuals, interests or activities Appeals

What Matters Constitute a Quasi-Judicial Hearing?

Land Use MatterVariances Conditional Use Permits Site Plan Approvals Special Exemptions

AppealsHistoric Preservation Procurement Bid Protests

Permitted Hearing Preparation

Site Visits Information from StaffEx-Parte Communications Conduct investigationsObtain informationReceive expert opinions

Ex-Parte Communications

All Ex-Parte Communication must be:Fully disclosed before or during the public

meeting and made part of the record before final action.

Full Disclosure means identifying:1. What communication 2. Who was communication with; and3. What independent investigation, site visit, or expert opinion was obtained

Three Requirements

Procedural Due Process

Essential Requirements of Law

Substantial Competent Evidence

Procedural Due Process

Proper Notice

Opportunity to be Heard

Essential Requirements of Law

Apply the criteria that affect the application such as: Staff ReportsComprehensive Plan Zoning Code Florida Building CodeExpert ReportsArchitectural Drawings

Substantial Competent Evidence

Relevant evidence

Adequate to support a conclusion

Substantial Competent Evidence Recommendations or Reports of City’s professional staff Expert testimony or reports of consultants Testimony of a member of the public with technical training,

education or expertise on an issue related to the application Testimony of neighborhood resident based on personal

observations, which include specific facts regarding the property or neighborhood

Resident prepared pictorial board with photographs that were taken of houses on the street showing character of properties on the street of applicant’s property

Not Substantial Competent EvidenceAgreement of neighboring property owner to the

variance Generalized opposition statements to variance of

neighbors Objections from a large number of residents of the

affected neighborhood, without specific facts relating to the objections

Letters from neighborhood associations, condominium associations, homeowner’s associations, or neighbors which state writer has no objection to the variance

Argument by an attorney for the applicant

The Commissions’ Decision

After taking all testimony and evidence:

Make findings of fact supported by competent substantial evidence of record

Apply the law to the facts

Render decision

Lawsuits / Liability

$$$$$$$$$$

Types of Claims

State Law / 768.28

Trip / Slip and Fall Car Accidents Police – Excessive Force / Unlawful Detention

Federal Claims / Section 1983

1st and 4th Amend Police – Excessive Force / Unlawful DetentionFreedom of Speech

Other

Employment Land Development PRRSunshineBreach of Contract

Exposure

State Law / 768.28Limited Waiver of Immunity – “operation” type activities Against City – only for actions of employees while in the

course and scope – and without malice, bad faith or willful and wanton disregard for human rights, safety or property

Against Employee – only if outside course and scope – and with malice, bad faith or willful…

200/300 cap for City (not employees)25% Atty’s Fee cap

Federal Claims

No Cap Qualified Immunity for EmployeesGenerally Removed to Federal CourtOften Atty Fees to prevailing plaintiff

Breach of Contract

No CapLook to Contract for Atty’s Fee provision

Atty Fees and Cost

Prevailing Party generally awarded costsAtty Fees only if by contract or statute Often only Fees to prevailing “plaintiff”City obligated to pay fees for defense of employee if within

course and scope and without malice, bad faith or willful and wanton…

Most often a conflict exists between “interests” of employee and City

Statutory Offers of Settlement

Settlements Vast majority of cases filed resolve State Claims – 200/300 cap Federal Claims – unlimited exposureJury UncertaintyProactive Upon Notice Valuation – Liability / Damages /Fees and CostsSelf Insured to 350,000 (all state cases)Charter – More than 30K goes to Commission Shade Meetings, Individual Meetings, Comments

Ethics

Meetings–Agenda Review–Mayor/Commission Work Sessions–Workshops–CRA Meetings–Special Commission Meetings–Golf Commission Meetings–Executive Session–Attorney Client sessions–City Commission Meetings

Media Relations

Discretionary AccountsOrd. 3172-98

Small Exp = $500 or less per event

Fundraising event by PBC based 501(c) community service org, when the event benefits WPB residents

Events other than political function where your presence is prudent to represent the City’s interest

$500 or more = Commission ApprovalMust serve a public purpose

Travel Policy

Other