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Minutes 07-23-90 (2)MINUTES OF THE SPECIAL CITY COMMISSION MEETING HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA, MONDAY, JULY 23, 1990 AT 5:45 P.M. PRESENT G~ne Moore, Mayor Lee Wische, Vice Mayor Lillian Artis, Commissioner Robert Olenik, Commissioner Arline Weiner, Commissioner J. Scott Miller, City Manager Sue Kruse, City Clerk Steve Josias, City Attorney Mayor Moore called the Special Meeting to order at 5:45 P.M. Retention of Municipal Board of Adjustment and Building Board of Adjustments and Appeals as Quasi-Judicial Bodies Mayor Moore's research indicated the Board of Adjustment and Building Board of Adjustments and Appeals are used sparingly and there have been relatively few, if any, appeals from decisions of these boards to the Circuit Court. The Mayor requested that this item be placed on the next regular City Commission meeting Agenda for reconsideration. He felt these two boards should be left alone. Vice Mayor Wische requested the Commission vote on this topic and have it ratified at the next regular meeting. The Vice Mayor felt he had acted a bit hastily and he also recommended that these boards retain the status they have had. Commissioner Olenik pointed out that since this was an ~genda item, the Commission could vote on it and it would not need to be ratified. The Commission agreed to proceed with a vote. ~ Commissioner Weiner felt the idea to take away the quasi- ~udicial powers from these boards was an ill-conceived, intemporate action on the part of the Commission. In her opinion, it was a ploy to dilute power of a citizens advi- sory board and to place it in the hands of the City Commission. Vice Mayor Wische and Commissioner Weiner apo- logized to the board members. Vice Mayor Wi~che pointed out that in his motion, there had never been mentioned dissolu- tion of these boards. Mayor Moore clarified the only thing they had considered changing was the appellate procedure from the Circuit Court to the City Commission. This would save aggrieved persons money. They would still have the option of going back to Circuit Court, if they chose to. The Mayor thought some persons had misunderstood this and it had even been misconstrued in the press. 1 MINUTES - SPECIAL CITY coMMISSION MEETING BOYI~TON BEACH, FLORIDA JULY 23, 1990 Vice Mayor Wische moved to leave the Board of Adjustment and the Building Board of Adjustments and Appeals as quasi- judicial boards and to rescind the motion to change that to advisory boards, as to those two boards. Commissioner Artis seconded the motion which carried 5-0. Discuss Effective Date of Vacancy - District IV Mayor Moore was concerned about what the effective date for Commissioner Olenik's resignation was. He was concerned that the correct legal decision be made in this regard. If the decision was wrong, and Commissioner Olenik remained on the City Commission until November, he was concerned that persons coming up on the short end of 3-2 voteS in which Commissioner Olenik may have participated, could challenge such in Court. The Mayor wanted a recommendation in writing from the City Attorney by the next regular meeting in this regard. If there was any doubt as to Commissioner Olenik's status, a judicial determination could be obtained on an emergency basis. A letter dated July 6, 1990 was submitted to the City Clerk. The letter referred to a resignation date of November 20, 1990. The letter was stamped as received by the City Clerk on July 9, 1990. The Mayor explained under State law if you don't file this ten days before the inception date of the filing, the resignation is deemed to be effective imme- diately. The Mayor stated the ~tte~ ~s ~m~sS~n ~ s prior. The resignation letter ln~caL~u u~F ~ St te. day .... ~ m~rnor and Secretary o~ a also been forwar~ea Mayor Moore stated the fax notices to the Governor and Secretary of State were dated July 9, 1990. Reference was made to the City Charter which indicates, "Tenure of resignation from any elective office shall immediately create a vacancy in that office." The Mayor referred to the same situation which arose in July, 1988 with former Mayor Nick Cassandra. At that time the Commission determined his resignation became effective on the date of the announ- cement. ~Commissioner Olenik remarked the City Attorney had researched this topic and was prepared to present his finding at this time. Mayor Moore stated he had not been privy to any discussions with the City Attorney on this issue and he wondered if perhaps one Commissioner might have gone to the City Attorney to obtain advice without letting the other Commissioners be privy to the advice. Commissioner Olenik stated Josias & Goren is paid to provide legal opinions on issues. They have been hired just like the City Manager has been hired. Commissioner Olenik 2 MINUTES - SPECIAL CITY cOMMISSION MEETING BoYNTON BEACH, FLORIDA JULY 23, 1990 remarked that he goes in and speaks to the City Manager on many issues that concern the City. He does not ask for Commission approval before doing this. He pointed out the city Attorney and City Manager are the two individuals that personally report to the City Commission. CommisSioner Olenik felt Commissioners could go in and talk to either individual, as Commissioners saw fit. Commissioner Olenik had asked questions so he could understand his rights as a Commissioner and ~s a candidate for elective office. C~ity Attorney Steve Josias remarked Jim Cherof was absent firom the meeting as he was recuperating from surgery. ~ttorney Josias stated they had researched this question on previous occasions. On one occasion his firm had litigated this question on behalf of a City. He stated the resigna- tion is considered effective and did comply with the Resign to Run Law, Section 99.012. Chapter 166, Section 166.0213 Was referred to which basically says municipalities have home rule powers in all subjects with certain exceptions. In the preamble to the Resign to Run Law it is stated that it supercedes any city or County Charter. Attorney Josias stated if the person resigns ten days prior to the opening of qualifying, they can resign at one of several times, including immediately- He pointed out the following language in Section 99.012: "if elected to the office for Which he seeks to qualify or the date at which, under law or the State Constitution, the person elected to an unexpired portion of his term is required to assume office, whichever occurs earlier." iCity of Hiaheah vs. Martinez, in the Third District Court of iAppeals, 1981, held the general law, 99.012(2) in that !instance pre-empted the Charter of the City of Hialeah. iAttorney Josias remarked that case confirms the position that State law is pre-emptive and pre-empts the Charter. This case has not been overturned. Attorney Josias made remarks relative to the letter of resignation which was dated July 6, 1990 and was date stamped received by the City Clerk July 9, 1990. He explained the purpose of the Resign to Run Law in technical terms and stated the question simply becomes whether the letter meets the requirements. If something is put in the mail or a document is delivered, the time it is received is not important. What is important is the time that you deliver the document. This simple theory is known in contract law as the "Mailbox Rule." If you deposit a docu- ment, you have done all that you can do to deliver the docu- ment, regardless of what happens afterward. It was pointed out if the document was delivered more than ten days before the qualifying period began, then it complied with Section 3 MINUTES - sPECIAL cITY coMMISSION MEETING JULY 23, 1990 BoYNTON BEACH, FLORIDA · v JosiaS felt the resigna- .... ~ ~f~ect~ve. Att~rne~ .... ,ns e~ective within 99.012 an°_~_e and the reslgna~..~ld serve until ~'~n was e~ecu~ . · -~ olen~ ~lu -d comml s s lo~l its own termS au 12:01, Tuesday, November 20, 1990. vice Mayor Wische asked Attorney Josias about the Mayor'S o le coming back and sueing - ~ n votes and pep = .~ =nvone sued, he ncern aboU5 o-~ · indicate~ 1~ ~ { =~ ^~er ~ m~. Attorney Josla~ ~ttorney joslaS mau~ ~r t~e ~ ~ ~ would win. ~ - =dvice from au~ - didn't thxnk_u~sin~ whether to follOW ~ remarkS abOu~ cn~ = i~ the Commission still ~elt unsure, heys or not. He stated they could seek declaratory judgment in circuit Court. He thought the Commission should ~eel comfortable in relying on the city Attorney'S opini?n in this regard. He repeated his ~irm had litigated th~s type o~ case before. It was not the same charter provision, but it was the same Statute. to Governor Martinez being Moore referred to t~e_~ that was a~ter the fact. Mayor - ~ 1990 and asked ~ dated July ~, ~ was no requirement in State Attorney JosiaS responded the~e law that says you have to notify the Governor. commissioner olenik interjected he notified the Governor as the Assistant Supervisor of Elections had indicated it wouldn't hurt to . r o~ State and the .... the Governor, the Secre~ he was required t~.~otify n°tl~{=sor of Elections. The ~o~= =~ notified the ulty Superv~ ~ · '~ ~e stateo ~ ~.~ wa~ the city commlSslo~'~,_~re remarked when yoU ~lie Manager as well. Mayor ~.~oo . office in this City, yoU file with the City Clerk He noted the letter was addressed to the Mayor and city Commission- The Mayor asked Attorney josias if that was okay. Attorney josias thought the Mayor made a good point. Mayor Moore commented that waS why he didn't want to rush and decide this tonight. The Mayor stated if he had to do something by a date certain, he would rouse the Clerk and have her stamp it. Further discussion took place between the Mayor and Attorney Josias regarding the date on the letter, the date stamp and when it was delivered. Attorney josias stated if you do not comply with the Resign · · der to qualify ~or ~^n ~ou must resign ~n or_ ~=~or Cassandra'S to Run Law, u~ ~e made about ~orme~ ~ ~=d discussed ~fice- Remarks -~% ~^~k indicated ~e ~ = ~=~ ~r. ~77 _~^~. Commissioner ~==~ --~=d to Mr. Chero~ sl~U~u~ -'- ~erof and it app~ Commissioner Olenik this with ~1~ Cassandra was not given proper advice. the commission votes to declare a vacancy. The explained ~ ~ ~a~i~ former Commissio~ did ]~n~t%t e~e~ec ~a n. e. Commissioner o ._ ~ en the C based on advice from the City voted to declare the vacanCy. Attorney cherof thought what ~ormer City Attorney Raymond Rea may have missed in his interpretation of the laW was that the resignation is required, but our Charter is silent on e~fective dateS, therefore the State Statute prevailed- 4 MINUTES - sPECIAL cITY coMMISSION MEETING JULY 23, 1990 BoYNTON BEACH, FLORIDA commissioner Weiner moved that the Commission accept the resignation as o~ November 20, 1990 and end this question. V~ice Mayor Wische seconded the motion. The motion carried voted against the motion as he thought 3-1. Mayor Moore into something that had not been ade- ~hey were rushing quately researched- Commissioner olenik abstained ~rom voting on the motion. Memorandum of voting Conflict is on file in the City Clerk'S office. ADJOURNMENT As there was no further business, the meeting properly adjourned at 6:15 p.M. BEACH cITY ATTEST: Mayor R~ding secretary (One Tape) -- dommi s s loner 5