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Minutes 08-29-86MINUTES OF THE SPECIAL CITY COUNCIL MEETING HELD AT CITY HALL, BOYNTON BEACH, FLORIDA FRIDAY, AUGUST 29, 1986 AT 5:15 P.M. PRESENT Nick Cassandra, Mayor Carl Zimmerman, Vice Mayor Robert Ferrell, Councilman Ezell Hester, Jr., Councilman Dee Zibelli, Councilwoman Peter L. Cheney, City Manager Betty S. Bor6ni, CitY Clerk James W. Vance, City Attorney Mayor Cassandra called the meeting to order at 5:15 P. M. and announced-it was a special meeting he called because of a concern he has for the city. He was approached ~Saturday at his home by news media raising questions on the opinion and lack of action by the City Attorney. Upon sleeping on the questions asked of him, he decided to call the City Manager and call a special Council meeting because the City of Boynton Beach has always been above board and never has a cloak and dagger problem. We should discuss either a vote of confidence for the City Attorney or not and then, if a vacancy was created for the Council person's resignation and the Council should decide and put this to bed one way or the other. He would like very much to have a verbatim of this meeting for all Council members to look at with appropriate copies being given, so we do not have a Recording Secretary trying to summarize what a Council person meant to say and what the objective was. For the'record, since he called the meeting, he will start it and.then if it is the Council's agreement, we can start from. Councilman Hester and let everyone speak and Mr. Vance have his turn to speak, since the first item concerns why he waited three weeks to let the Council be aware of an opinion whatever it was that he received. For the record, Mayor Cassandra stated, when Councilman Ferrell handed in his resignation, the City Clerk, doing her job, proceeded to raise the ~estion of what the resign to run law meant and as far dates were concerned. She wrote a letter on June 23rd to the Deputy Secretary for Elections, Dorothy W. Glisson, asking to please clarify the resign to run law and resignation~date. She received a response dated June llth from Dorothy Glisson where she attached some opinions, Elections Opinions DE80-16 and DE81-5, Resign to Run Law, where she points out through the statutes the different opinions. At which time on June 23rd, Betty Boroni, still doing her job and making sure she is not making any mistakes or demanding anything from a Council person that is not required of him, asked the City Attorney, Mr. Vance, to please clarify and see what the City Clerk should do in reference to Dorothy Glisson's response. Mr. Vance, through his office on June 27th, wrote a letter - 1 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 to the Attorney General raising a multitude of questions, some of which were the resign to run law and the importance of getting an answer quickly because of our charter, plus the definition of terms which was not the prevalent question that the City Clerk was concerned with at that particular moment. On July 31st, City Attorney Vance's office received a response from Dorothy Glisson again repeating the same things basically which she said in the first response to the City Clerk, of which you all have copies in your mail. Subsequent to that on August 19th, Mr. Vance explained to the City Clerk the opinion he received commenting to her that he felt that the questions he had asked were not answered sufficiently or did not answer all the questions or per- tinent information. At this time, he walked into the office and Mr. Vance proceeded to tell him the same information. At which time, he asked Mr. Vance how long he had this opi- nion and he replied approximately a couple weeks. At that time, he advised Mr. Vance that this information that he had should be given to the Council and it should be the Council's decision to either followup or not. The actual amount of time he had it was from July 31st to August 19th. Mayor Cassandra clarified that his concern was: Did the City Attorney's lack of action as far as informing the Council jeopardize this City in any manner? The concern he has is the following: If a vacancy was created, then the Council person involved should have been informed. If he wasn't informed, then he did an injustice to the Council person. If this Council person was informed, why weren't the other Council members informed. We went through two Council meetings where the City Attorney did not inform us, August 5th and August 19th. If the opinion was that the vacancy was created at the time the resignation was tendered, then did that jeopardize our charter which specifically states the Council must appoint a replacement in two Council meetings. If they don't appoint this replacement in two Council meetings, then we must go to a special election. He has been informed a special election costs approximately $6,000. If intentionally or unintentionally, he sat on this, because he is overworked or it slipped between the cracks, and as he said in a newspaper article he gives the City Attorney the benefit of the doubt, then we have a problem which must be discussed. This Council must decide tonight to clear it up one way or the other if the City Attorney in his lack of actions jeopardized the city, if he was in the service it would be "derelict of duty", but here it is not derelict of duty but responsibility probably. If he intentionally did - 2 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 this, then we have a problem. If the Council person involved was not legally on the Council, the question comes to mind whether that jeopardized any votes that he might have been on the majority party. All these questions came to mind, to his mind, which is the reason he called this special Council meeting. One, either give a vote of con- fidence to the City Attorney or not give a vote of con- fidence to the City Attorney and therefore, by that, requesting that he does not represent this City any more. One way or the other, this Council must decide. He thinks we should never have a black cloud over anybody. That is the first issue of concern, which he thinks should be cleared up as an issue. He has presented all the facts and his concerns and with that, he will start with Councilman Ezell Hester and if he has any comments. Councilman Hester stated he wanted to hear from the City Attorney before he makes some kind of remark. He will not say anything until hearing what Mr. Vance has to say. Councilman Ferrell stated it is important first and the mem- bers of the press here know that the black cloud over the City Attorney is not placed by the Council, but has only been placed by the Mayor's question and not necessarily by everyone else on the Council. He doesn't want to be in that same light at this point in time. He thinks there is an important question here. The important question is that never, not ever, was this issue discussed by the City Council, not once, which means the City Attorney had no obligation to bring anything back to the City Council. It may be possible that some member of the Council might have overstepped the charter by going somewhere and asking for this opinion. This was not discussed by this Council ever. He thinks that is the key issue here. He does not see where there is any problem whatsoever. Councilman Ferrell continued that as far as the issue itself, there has never, since the resign to run law was passed, been a problem with it in any city in Palm Beach County or the state that he is aware of. There are many situations throughout the State of Florida right now, a lot of them, in the exact same situation that we are in right now and everyone seems to understand it except right here. There are people right here in Palm Beach County in the exact same situation, who are running for public office and it seems to run normal. It has been done in Boynton Beach before,, including himself, and there was no problem. There has never been a question about it. Word has been passed down that some of the people concerned about the Tradewinds - 3 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 project would like to see him out before September 3rd. He thinks there was no lack of action on the part of the attor- ney because the Council did not request anything. We have a Council form of government; if we are going to request something from someone, let the City Council request it and it be discussed by this City Council. He doesn't think we should jeopardize employees or involve employees in politics by saying they didn't do their job when they weren't involved in the process. That is why we have the type pro- cess that we have. As far as him being informed, he didn't need to be informed. He hasn't been concerned about it since the issue was brought up. Again, it has been done before. He hasn't had the slightest worry about it in the least. He thinks that a moUntain has been made out of a mole hill without question. Vice Mayor Zimmerman stated that he is not an attorney, but sometimes wishes he were. He probably wouldn't be as con- fused about a legal question as he is on this. In regard to the former speaker's remarks, has he been belaboring under false apprehensions here that each of us individually has access to the City AttorneY. It does not have to be an action of the Council. Councilman Ferrell replied that is a true statement, but this originated with the City Clerk. Attorney Vance added that each membe~r of the Council has the right to call or write him for information that he may have in his office. Vice Mayor Zimmermanl stated that he has done that many times and has always gotte~ a response and he thought he was correct about that. Councilman Ferrell replied that he is 100% correct and he agrees with him 100%. Mr. Vance added that if he gets a written request for infor- mation, he furnishes it to aL1 members of ~the Council. Vice Mayor Zimmerman continued that he do~s feel some of us did r~ individually an opinion from the City Attorney on ti because we were all pretty muchi.confused as to what we should have done when the resignation was handed in. That is the next subject of discussion, however. In regard to a vote of confidence, he thinksl he will: withhold his opinion until he hears the entire pro~blem discussed and he probably will have some more questions at that time. Councilwoman Zibelli stated she feels just about the same way. She looked at the July 31st date and knows she received it August 22nd, which she thinks is a long length of time for getting any sort of answer. She is sure the City Attorney knew each of us was interested in putting this thing to rest and say yes, no, that's it and forget about it and know what the direction is. She will also reserve her opinion. - 4 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 City Attorney Vance stated over a period of a couple years, there had been various questions raised about the election procedure in the city. Betty Boroni, City Clerk, came to him with responses she had received from Dorothy Glisson to her letters and asked him to help her with interpreting these o~inions. At that point, he decided it made some sense t~ go ahead and ask a question regarding the resign to run law, which was her concern, and lumping in all the other questions which the city had. At least, he tried to lump them all, but doesn't know whether he got them all or not, but he tried. He felt the primary concern when the response came in was to the City Clerk, because she was the one who had asked him for help in respect to the resign to run law. He did not know there was a great concern on the part of the Council as a whole at that point with respect to that particular item. When he got the response in, he felt that basically the lady had failed to respond to several of the questions he had posed to which he hoped she would respond. He felt that the rest of her opinion as written adds new meaning to the word "obtuse" in the English language. He further found in reading her opinions that it did not change his opinion at all with respect to what the situation was in the city in relation to the resign to run law. Therefore, he contemplated somehow trying to get back to the Attorney General and get him to respond because he felt he would probably do a better job of responding. Unfortunately, he also took a five day vacation, that just happened. It slipped a little farther than he thought it would. He was not trying to conceal the opinion from any- body. In fact, he was discussing it with the City Clerk when the Mayor came in, because he thought she was the one who was primarily concerned. His only problem with the opi- nion was that he felt it was totally inadequate as a response to the series of questions that he had asked in his letter. Mayor Cassandra requested additional comments. Councilwoman zibelli stated her problem is still the time element. Vice Mayor zimmerman stated that not having this information at the time the questions came up and when it was requested did in many ways not only hamper his thinking to it clearly and knowing what to do, he thinks it affects the Council because no one, as Mr. Ferrell mentioned, even knew what turn to take and brought it up at a Council meeting. We did nothing becaUse we were in the dark. We were not informed as to what to do. He still doesn't know what we should have done. We didn't do anything which he is sure of. - 5 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 Mayor Cassandra announced he wanted to make one statement to Councilman Ferrell, not one of argument but one of fact, he hopes. As Mayor of this town, called the City of Boynton Beach, when we took our oaths, we probably took it in dif- ferent mind. He feels it is his responsibility at all times, no matter what the issue is, no matter who the person is, to bring this question to the Council for them to decide. If he feels, as long as he is Mayor, that there is a sensitive issue that this Council should act upon, that is his responsibility. That is not a political move as he is not running. He didn't go to the press; they came to him. As far as any staff member working here, this Council should protect every staff member, no matter who it is in their inquiry. They are not involved in our political chain, but one of responsibility to their position. Mayor Cassandra continued that he wanted to make a few com- ments on his concern. He thinks the question here is distinct. We received no opinion from the City Attorney, even if it was right or wrong. There could have been a strong possibility that if he made an opinion directly to the City Clerk at the time she raised the question, this Council would have honored that opinion and we would not be in this particular position. We have honored the City Attorney's advice at all times because he is our legal attorney. Having no opinion created the problem. The lack of his awareness that we wanted to know, he cannot answer. If he gave an opinion, even when receiving the response from Mrs. Glisson a second time, he should have offered an opi- nion saying he did not agree and the resign to run law is that or is not that. There is a good chance the Council would have gone along with that opinion. We did not know. If we read this ourselves and probably put ten people together, we would get ten interpretations of what this law says. His concern still is and has been and what he has raised behind this whole issue was that inaction jeopardized this city - are we forced to go to a special election now; if the vacancy was created, do we still have time to appoint somebody? The answer was received the 31st of July and not knowing this information until August 20th - if a vacancy was created, then we have two Council meetings after that and did we exceed the two meetings? Is it the two Council meetings from June 23, but because of legal action for clarification, does it become the date of receipt of the last opinions? All these questions are questions in his mind. Mr. Vance stated he had previously given his opinion, whether he gave it to any individual Councilman or not, he - 6 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 19'86 does not ~emember, but he previously indicated at the time we got those opinions in from the Division of Elections, he believes that he had given an opinion on them only to the City Clerk at that point in time. This opinion that we received did not change his opinion in any way. If they want his opinion at this point, he'll be happy to give it. Vice Mayor Zimmerman suggested clarifying for the record here between what the two last speakers have said. We did receive a cover letter from Mr. Vance on August 20th, dated August 20th which we probably received a day or two later, which stated his opinion concerning the information received from Dorothy Glisson's office. What this says at the end is: "Our office is of the opinion that an attempt should be made to obtain more specific answers, if that be possible, in the immediate future". We will have to say Mr. Vance was trying to answer our request; he didn't ignore it all. It's just a little late. iMayor Cassandra suggested placing Mr. Vance's memo of August 120, 1986, in the record and read the attached in its ientirety. He then read a copy of the attached letter dated !July 28, 1986, from Dorothy W. Glisson to James W. Vance. iCouncilman Ferrell referred back to the time of taking oaths land reminded the Mayor that we all took an oath at the same itime and he thinks it was equal. We all have the right to ivoice our opinions and our concerns. He agrees with the IMayor taking the problems to the City Council and that is iwhat is being done tonight for the first time. He disagrees iwith involving employees and-staff people in actions of this !sort. The bottom line is, and it has been clarified to the satisfaction of millions of people with the exception of a couple apparently, that the resignation takes effect on November 17. It can be taken technically as NoVember 18. This is where he will be until November 17. The Council cannot remove him. If that is the desire, he thinks we are talking about something that is really wasting a lot of time and embarrassing a lot of people~over something which in his opinion is a crock of bull. The vacancy was created when he turned in the resignation and that vacancy is at five lo'clock on November 17 and that's when it is going to be. He is not leaving. So, we can talk about this all you want. As Mr. Vance said, the City Clerk came to him;.Council mem- bers did not. He thinks we must remember that. If there is m move here to get rid of him, he thinks that we should remember that legally, he was not approached by the City Council, but by a member of the staff and he responded to a member of'the staff, like he was required to do. If we want - 7 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 to require of the City Attorney to forward to us every response to staff, we would all need to buy more file cabinets and they would definitely be full. He thinks we have a real problem here. He thinks it may be possible maybe somebody didn't read the charter themselves and doesn't know how to make a request on something like this. He thinks a real mountain has been made out of a mole hill and we're wasting a lot of people's time over something that we know the answer. This was done just a year and a half ago. There was no problem then, but at that time, we did not have an issue coming up that we disagreed on and were not in an apparent rush to oust him for his office and put someone in who had a different line of thinking than him, which has a significant impact on what is going on right now. If we have a difference of opinion in political philos- ophies or on a particular project like Tradewinds is coming up, we will argue that; but to drag an employee down into it or the City Attorney, he thinks is a mistake. He is making his point. His point is that in accordance with our charter and everything we run by in this city, a request did not go from the City Council nor Council member to the City Attorney. It came from the City Clerk and he responded to the City Clerk. Now, we want to get him because he didn't respond to us? That is beyond his imagination. He knows there was a time lapse. It initially appeared to be a con- cern to someone looking at it, but the point is that he was never asked by us. This was never discussed by this City Council. Vice Mayor Zimmerman replied that he did ask several questions. Councilman Ferrell continued that his point was that it was never discussed at a City Council meeting, like it should have been properly. Vice Mayor Z!immerman interjected that they have the right to go indivi- dually to the City Attorney and Councilman Ferrell agreed, but someone slhould not approach a member of staff and requested it and then it went to the City Attorney. Vice Mayor Zimmerman interjected that they cannot put the whole blame on the City Attorney and Councilman Ferrell replied that he is not putting any blame on Mr. Vance. He is not blaming anyone. We did not discuss this as a City Council. He referred to Vice Mayor zimmerman being con- cerned and expressing his concerns to someone and the Mayor may have, but he never did. He does not know if the other two Council members did until the problem became a point of publicity. All he is saying is let's not chastise the City Attorney for what may have been a communication problem among Council members. It may have other political issues embedded in it, which is fine, but he doesn't think it is right to go after someone who did what they are required to do in accordance with our charter. - 8 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 Councilman Hester referred to hearing Mr. Vance's response and listening and stated his concern again is when Mr. Ferrell submitted his letter of resignation, he believes that question should have been brought up at that particular time or sometime thereafter, we should have notified Mr. Vance that we wanted an opinion on this particular resigna- tion. Again, the request was made by the City Clerk and she wanted to know and he imagines if it was that important, we would have known. Again, we have a Council form of govern- ment and if the problem came up, then he thinks it should have been brought before the complete Council. He has no problem with anybody going to Mr. Vance. But if there is a problem like this, he thinks the whole Council should have known about it and that is why we are here today. If we had been concerned earlier, we would have probably had the problem already solved now. As Mr. Zimmerman said, he is not a lawyer and neither is he. He read over this and can get as many interpretations as he wants. He is not going to sit in judgment of anybody about the interpretation. Since Mr. Vance was not asked to report to the Council about this particular problem, he doesn't think we can fault him. He understands it was a long time before the opinion came; but at the same time, we didn't ask for it. He didn't and maybe some of the others went to Mr. Vance and asked him and that is kind of personal. Therefore, if the question is that big and that important and he imagines it is important for us to be on legal grounds; but at the same time, he thinks it should have been brought before the entire Council for discussion at that time and then, we could have made our decisions one way or the other. Mr. Vance stated as he indicated before, he had received, over a period of time possibly even a couple of years, various questions from members of Council. For example, what hap- pens when you resign partway through your term - does that constitute a full term? So when Betty asked him for some help in trying to resolve what he regards as a very badly and poorly written opinion by the Secretary of State's office, he thought it might be an appropriate time to package quite a few questions and try to get them all out of the way at one time, which is what he attempted to do. He had no question in his mind as to what the appropriate ruling was with respect to resign to run law specifically, Mrs. Glisson's opinion, though again he would say she raises the word "obtuse" with new meaning in the E!nglish language, concurs with the opinion he had and which he thinks he con- veyed to one or more members of the Council. At any rate, the point that concerned him is the fact that she totally failed to respond to some of the other questions that he - 9 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 packaged in the questions he sent to the lady. His opinion is, and the part that gets tricky and the people have a little problem understanding, that with respect to the resign to run law, there are two different types of situations that arise and the Legislature in general didn't really take this into consideration when they wrote the act. The act basically applies to state officers. The verbiage is simpler to handle if you are looking at state elective office, but the act also applies to situations where you have municipal charters. Now the problem with some of the opinions that you have from the Department of Elections, the Attorney General is considerably better, is that city char- ters use different words. Our charter uses the word "vacancy". Some city charters use the word "resignation" and require a replacement upon resignation. But, our city charter uses the word "vacancy". He read the section of the charter: "In the event of a vacancy occurring in the mem- bers of the City Council, except at the close of a regular term, it shall be the duty of the remaining members at the next regular meeting, or as soon thereafter as possible, following the declaration of such vacancy, to select a duly qualified citizen to fill said vacancy until the next general election. If a majority of said remaining members are unable to agree upon the selection of a Councilman to fill said vacancy after two regular meetings have been held, the City Council shall call a special election for that purpose." We have several opinions from the Attorney General and we have several opinions from the Department of Elections. We have some cases. Remember, the opinions you get from the Attorney General and the opinions you get from the Secretary of State are strictly that ~- opinions, the opinion of a lawyer. He is not too sure the opinions Mrs. Glisson writes are the opinions of a lawyer as most lawyers write better than that. We have the case of McClung v. McCauley, which is a case decided by a District Court of Appeals. He read from the case: "An incumbent of another public office remembering the purpose itself to be accomplished by the enactment of Chapter 70-80, which is the resign to run law, can resign ten days prior to the qualifi- cation date under Chapter 70-80 and continue to hold his present office until roughly the end of his concurrent term." Essentially, it has always been his opinion and he has never had any doubt reading the statutes, that ~ouncilman Ferrell's resignation, and the key word is "resignation", is irrevocable under the act, he can't pull it back and he can't withdraw it, however, it does not take effect until November 17, 1986 at 5:00 P.M. and at that oint, we have a vacancy on the City Council. The City ouncil then has two meetings to appoint a replacement and - 10- MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 if they can't do that, they must go to a special election sche- duled whenever they wanted. This is what Mrs. Glisson says in a very inadequate way. In fact, he called the lady this afternoon and she told him that is what she said. He read her opinion and it was his interpretation that is what she said. Councilman Hester clarified that we sent this to the Attorney General for his opinion and Mr. Vance agreed. Councilman Hester continued that he is sure there are lawyers in Mrs. Glisson's office. He knows responsibility must be designated. He wants to know why the Attorney General didn't give us an opinion. It would be better than a layman because they know the law. Mr. Vance agreed and added that he has been trying to get back to the Attorney General. He read a letter from the Department of Legal Affairs to him on July 14th addressed to Mrs. Dorothy Glisson: "This office recently received a request for an Attorney General's opinion concerning the application of Florida election laws to the facts decided in the text. Pursuant to my discussion of this matter with your office, I am transferring the request to you." Mr. Vance summarized that the Attorney General took the easiest way out. Mayor Cassandra asked Mr. Vance for his opinion on two things: Section 99.012, which has nothing to do with Mrs. Glisson's obtuse reasons. He read: "Section 99.012, Florida Statutes, provides that certain public officers must submit an irrevocable resignation as an eligibility con- dition for elective office. The subsection also provides for the earliest deadline upon which such a resignation shall be effective. However, under the resign to run law, the public officer has no power to choose an effective resignation date, Section 99.012(2), Florida Statutes." He thinks she reflected to these two in the comments in her letter. Mr. Vance informed him that this relates to the problem that we have because the state has standardized election time periods. There are the primaries in September and the general election in November. If the City of Boynton Beach had an election on November 7, whenever the general election date is, and Councilman Ferrell had resigned ten days before qualifying for the Palm Beach County Commission, in that event, there would have been an open office which anybody could have filed for. In other words, you could have gone down to Jackie Winchester and you could have filed for City Council of the City of Boynton BeaCh as of the date When Councilman Ferrell submitted his resignation. However, you still would not have had a vacancy until November 17. - 11- MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 Mayor Cassandra referred to the other portion of his question regarding the public officer having no power to choose an effective resignation date. Mr. Vance informed him that he can choose an effective resignation date as long as we don't have a situation where there is an election that would place somebody in office earlier than his resignation date. The key in this whole thing is the law is designed to require people to resign and open up elective offices at such point there is a resignation if there is an election coming up. We don't have an election for this office though for another year and a half. Vice Mayor Zimmerman asked what options we would have when the resignation is handed in, which we might have taken advantage of and Councilman Ferrell replied there were abso- lutely none. Mr. Vance added that he doesn't think Council had any options. He doesn't think there was any vacancy that would have triggered an option that the Council could have exercised. The City Council, under our charter, can't go into action until there is a vacancy. Mayor Cassandra clarified that his definition was based on resignation/vacancy. He referred to Mr. Vance saying the resignation is not creating a vacancy at the tender of resignation. Mr. Vance agreed this was correct under our city charter. But, if we were in the City of Fort Lauderdale, for example, their charter uses the word "resignation" and that is a different situation; that is a horse of a different color. We say vacancy. Vice Mayor Zimmerman stated all our discussion blends into the answer to another question - whose opinion over-rides the other opinion? Mr. Vance informed him that none of them do. He added that an Attorney General's opinion can be relied upon in taking action, but we couldn't get one of those. The Department of Elections - he doesn't know whether there is any statute or case law that gives that any dignity at all; there is none that he is aware of. It still is an opinion. He frankly disagrees rather violently with a whole lot of Attorney General's opinions he has read and has even overturned some of them, he has had other people argue them and he has won. Mayor Cassandra asked if there were any other questions of the City Attorney. Vice Mayor Zimmerman stated there is still one here that glares him in the face in the letter from Dorothy Glisson in the second paragraph where she gives the three points which we should rely on. First, a resigna- tion under the resign to run law is irrevocable, which we - 12- MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 all agree on. Second, with respect to an elective office, the resignation, when tendered, creates a vacancy. Mr. Vance pointed out the third paragraph down is the key and clarified that it creates a vacancy if there is an election coming up, which people can file for. They can go out and file to run for that office. But, under the statute, as he reads it, and under the case we have, it does not remove the individual from office until the date of his resignation or his election to the office for which he resigned to run whichever is the earliest. There are two types of vacancies contemplated by the statute. There is a vacancy for the purpose of election which attempts to make an election, if there is an election coming up, the most important item. There is an actual vacancy where there is no election coming up, nobody can file for the office, which takes effeCt, based upon the case law we have and the statute, on the date of resignation as long as it is prior to the date the indivi- dual would take office for whatever elective office he is running for if he is elected. Mayor Cassandra asked if there were any other questions of the City Attorney. He suggested, so no big emotional deci- sion is made pro or con, taking about seven minutes to think about what we have heard and put this thing to bed one way or the other. The Mayor reconvened the meeting at 6:12 P.M. Mayor Cassandra asked if anyone wished to make a closing statement. There being no response, he stated he would like to very strongly, even though it has come up a couple times, emphasize to please understand the issue here is not Tradewinds. The issue here is strictly about the attorney's response and consider that respect and leave the Tradewinds out of it; that was not for discussion today. He would like to make a statement. It is his opinion that the City Attorney has a responsibility to this Council regardless who asks him a question pertaining to something affecting a Council person, something affecting an ordinance in our charter, something affecting our charter. ~That is his opi- nion of the City Attorney's responsibilities on all items, no matter where it comes from. If a very honest concern com~s from a staff member, this Council should be made aware of it. The attorney is our legal representative and should keep us informed on the legal ramifications. That has been and still is his very strong concern. Did the City Attorney fulfill his responsibility to this Council in reference to the question concerned? He is ready to listen to one of two possibilities involving this issue: one, a vote of con- fidence and two, a vote of lack of confidence stating the city Attorney for this city should be terminated, either or. - 13 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 Councilman Ferrell made a motion to give the City Attorney a vote of confidence, Councilman Hester seconded. Mayor Cassandra announced there is a motion and second to give the City Attorney a vote of confidence. He asked if there was any discussion. Under discussion, Councilman Ferrell stated he could not agree with the Mayor more on his comments that the City Attorney has responsibility; however, in the years he has been associated with the city, those points are always, whether it comes from staff or anyone else, when it concerns qualifications or anything having to do with a Council member, that it is not up to a staff member to question it or anyone else, it always comes to the Council first and then is passed on. That is a key point in this. By what vote we take here, we could be setting precedent on how it is to be done in the future. He agrees if we had discussed this a month ago and asked for a report back, he assumes we would have gotten one back and if we hadn't, he would be wrong; but that is not the case. However, it has always been when it deals with one of us, it is not to the people on the staff or work for us to handle this, but to bring it here first and see what we want to do. Councilman Hester stated that it seems to him that this came up through the questions of someone else about this par- ticular problem at this particular meeting tonight. Again, he repeats, if there was that much concern earlier, he thinks reasonable people would have brought it up before now. He grants that he is not a lawyer, but this was not brought before this Council for discussion. Mr. Ferrell's resignation was brought up, but nothing was said. The only thing he sees we are here tonight is because somebody else brought this to somebody else's attention. He has nothing against that, but he still thinks if the Mayor was that interested in that situation, he thinks he could have brought it up earlier at some of the other meetings since we already knew about Mr. Ferrell's resignation. The only thing he can see, he agrees the attorney should give the information asked for and he questions that. But at the same time, he understands we did not ask for that infor- mation; we asked some questions, but we did not ask him to give us a specific opinion. For that reason, the only thing we got was this letter about Mrs. Glisson's opinion and this seemed to be the thing that triggered our meeting because we didn't know before now. He read it. He wouldn't know whether it is right or wrong, but he would want to go with the opinion, the attorney's opinion because he should know the law. He doesn't see where there is a lack of con- - 14- MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 fidence. He grants the Mayor that the City Attorney should let us know all the information, because he is the legal person for the city. Since no one on this Council, but maybe the Mayor did ask for Mr. Vance's opinion which is personal, but if it affected the whole Council, it should have been brought and discussed in an open meeting just by this Council. He is not here to argue with anybody, but is just stating his opinion as a member of this Council. He has been accused of not stating his opinions. He might as well state it now and let them know how he feels about it, but he only has one vote and his vote will be the way he thinks is best for this city as he was elected by the people. There is some responsibility he has to have in solving certain questions. That is how he feels now. He will live up to that responsibility for the people of this city. When he makes a decision, it will be for the city and not for a spe- cial group, but for the city that he thinks is best for the best interests of the city. He has been living here all his life and has seen problems come and problems go. As a member of the Council, he is going to do what he thinks is best. Mr. Vance did give an opinion that was asked of him per se and the only thing is the lack of time from when Mrs. Boroni asked for an opinion and we finally got this information through some other inquiries and the City Clerk's office. Mayor Cassandra referred to Councilman Hester making a lot of true statements and he and Councilman Ferrell also brought out some points, but this Council was aware by com- munication the steps that had proceeded and were going on. It is because of a lack of communication from July 31st until August 20th that no further questions were asked because we did not know that an answer came down. If an answer came to us in a communication, at that time, he is positive a question would have been raised by the Council. That is the important point. He referred to Councilman Ferrell showing the other side, which is nothing was done, so we have been abroad on every bit of communication because we all get carbon copies. Not further acting on by the Council because we were not aware when to act because we had the information one way or the other. Councilman Hester added that the opinion that Mrs. Boroni asked for, which is garbled and everybody seems to have an opinion about it. If it is garbled, he imagines something would have been brought before us, but he doesn't know. Councilman Hester also stated that it seems as if he is being put in the position of going along with certain people - 15 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 on this Council. He wants it understood now that nobody tells him who to vote for and what to vote for. He is not connected with anybody. He has one vote and that is all he has. It was mentioned about Mr. Ferrell and him. It was also mentioned when he was absent, he didn't want to bring this up but is going to bring it up, it was because of Tradewinds. He was not absent because of this, but because he was on vacation. He wants that understood. He didn't know it was coming up and if he would have known, he wouldn't have missed his vacation. Vice Mayor Zimmerman replied that he doesn't feel anyone on the Council had that opinion. Councilman Hester referred to reading it in the newspapers. Councilman Ferrell stated he would like to comment on a point in question which he thinks is very important because we have a structured government in Boynton Beach and how it is supposed to work. He knows for a fact that over the years that each one of us have on occasion asked the City Attorney certain questions, which is quite proper, and the answers have come back to each one of us and we have not all been given copies. He is not staff like the rest of the staffers. It may have been a personal question or something we asked about or were curious about, these things do not come back to the Council. He thinks it is important to keep that in mind. If it's a personal request from a Council member and you want a personal response. It is his understanding that this initial request to the attorney came from a staff member and that is who the response goes back to, unless we want to change how we work things here. I think that should really be given some thought. Councilwoman zibelli stated she would have appreciated seeing this on August 1, so we could have had this discussion at 11:30 at night at one of our Council meetings. Vice Mayor Zimmerman stated he is very willing to give Mr. Vance the benefit of the doubt as he thinks he has tried to get an opinion from higher authorities. He referred to Mr. Vance not being bashful in giving his own opinions and stated he has told us what he has read and everything he has been able to get ahold of. Maybe there has been a little bit of maneuvering and so on that some people read between the lines, but maybe that can be corrected in the future. He has had a good deal of confidence and respect for Mr. Vance and would like to see him get this vote of confidence right now. Mayor Cassandra called for a vote on the vote of confidence as the motion was submitted. Councilman Hester requested a roll call vote and Mrs. Boroni called the roll as follows: - 16 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 Mayor Cassandra - Nay Vice Mayor Zimmerman - Aye Councilman Ferrell - Aye Councilman Hester - Aye Councilwoman zibelli - Nay Motion carried 3-2. Mayor Cassandra informed Mr. Vance that he received a vote of confidence from the majority of the Council. Mayor Cassandra stated that since Mr. Vance is still on the board as the acting attorney, he would like to clarify for the record the second issue of concern which has been passed around back and forth in our discussion today and that is - In his opinion, is the November 17th date a legal date by sta- tute or was a vacancy developed effective July 31st when the response was received. Mr. Vance replied that for the record, it is his opinion and has been his opinion from the beginning that there is no vacancy until November 17th at 5:00 P. M. Mayor Cassandra stated the second question for the record - Is it appropriate for this Council to start the appointment of Bob Ferrell any time, looking for a replacement, with that appointment being effective at 5:01 P.M. on November 17th? Mr. Vance informed him that no official action can be taken until there is a vacancy. Mayor Cassandra asked if they could look for appointees and if an appointee is picked, he would be picked at 5:01 P.M. or the day after we meet after the 17th and Mr. Vance replied that a vote cannot be taken on an appointment until there is a vacancy. Mayor Cassandra clarified that the two issues of concern called by a special Council is that the City Attorney is still representing the city with a majority vote and that the effective date as defined by the opinion of the City Attorney is that Councilman Ferrell's effective resignation date and the vacancy would be developed on November 17th. Mayor Cassandra asked if there were any questions or concerns. ~ Councilman Ferrell made a motion to adjourn, seconded by Councilman Hester. Motion carried 5-0 and 'the meeting was properly adjourned at 6:30 P. M. - 17- MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA AUGUST 29, 1986 CITY OF BOYNTON BEACH, FLORIDA Mayor ATTEST: City Clerk Recording Secretary (Two Tapes) Vice Mayor ~uncilman i lwoman - 18 - Dorothy W. Gtisson Deputy Secretary For Elections July ~ ~o, 1986 FLORIDA DEPARTME OFSTATE George Firestone Mr. James W..~ance, P.A. Suite 200,'Barristers Building 1615 Forun Place West Palm Beach, Florida 33401 Dear Mr. Vance:- Your request of'Attorney General Jim Smith has been submitted to me for response. The opinions of this office pertaining to the impact of a resignation establish three point, s: first, a resignation under the resign-to-run law is irrevocable; sec~, with . respect to elective office, the resignation, when tendered, creates a vacancy, thereby allowing candidates to qualify for nomination and election for the unexpired term of the ~'_' n~ ~ ~ ? ~ ~ ~ ~i~ aga'ln for the purpose s%~ e ! 'e f e f 'i e of the resignation ~from which date-the unexpired term of office is to be determined) is the earlier of either the date on which the resigned elected officer-would assume the office to which he or she has been electe.d or the person elected to the unexpired portion of the.predecessor's term is required to assume office. From the above, it is contemplated that the vacancy created by the resignation zs to be filled by election. This is why the effective date of a resignation is statutorily ostured in the alternative - both of which alternatives nvoive election, r-ather than appointment. iherefore, I suggest you be guided by the broad principles enunciated 'in DE 80-16, a copy of which is enclosed, t trust this information will be of assistance to you. DWG:lb Sincerely, Deputy S~zretar~ for Elections DIVISION OF ELECTIONS, Room 1801, The Capitol, Taltahassee, Florida 32301 (904) 488-7690 MEMO TO: Mayor and City Council FROM: James W. Vance DATE: August 20, 1986 .... -' Opinion of Dorothy W. G!isson Deputy Secretary for Elections Please find attached a copy of an opinion rendered by Dorothy W.-Glisson, Deputy Secretary for Elections on July 28, 1986. Please also find attached a copy of our request for answers to various questions originally submitted to the Attorney General and referred by his office to the Department of St-ate. We have reviewed the attached opinion which does not appear to be responsive to the questions submitted by our office and znstead is merely reiterating previous opinions which are not necessarily pertinent to the questions asked. See attached letter dated June 27, 1986. We have in fact been trying to relate the response to our questions with little success. --Therefore, we are at this point forwarding the opinion of Ms. G!isson to the Council. Our office is of the opinion that an a-t-tempt should be made to obtain mo~e specific answers, if ~at be. possible, in the immediate future. ~TV/pm Attch. (2) CC: Peter Cheney Betty Baroni /~'~S '~. VANCE, Esquire