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Minutes 05-26-89MINUTES OF THE SPECIAL CITY COMMISSION MEETING HELD AT PRIME BANK PLAZA, BOYNTON BEACH, FLORIDA FRIDAY, MAY 26, 1989 AT 5:00 P.M. PRESENT Gene Moore, Mayor Robert Olenik, Jr., Vice Mayor Bzell Rester, Jr., Commissioner Lee Wische, Commissioner George Runt, Asst. city Manager Sue Kruse, Asst. City Clerk Raymond A. Rea, City Attorney Mayor Moore called the meeting to order at 6:00 P.M. ~oynton Lakes North / Lennar Homes / Building Dept. Mayor Moore opened the meeting by stating that he had been contacted recently by two groups of people that live in the area called Boynton Lakes North. A critical situation had developed where the developer had disregarded his obliga- tions with regard to the development. Ms. Toney and the City staff had been working on this diligently for approxi- mately the last 18 months and the developer has been pro- ceeding to get Certificates of Occupancy, sell houses and not do what it is supposed to do. As a result of a meeting With staff Monday morning, it was determined to withhold the issuance of approximately 20 final Certificates of Occupancy %hat they had for the last 20 units in the development. In the meantime, Saturday morning they brought in a crash crew- to try to correct the shortfalls that they had which involved irrigation, sprinkler systems, landscaping and things which should have been done 18 months ago. Apparently, only a partial portion of their obligation was bonded. The citizens were very concerned that they were going to finish up the last houses, get the C.O.s and "take a hike". A determination was made with staff to withhold the issuance of any additional C.O.s until such time as they met their obligations. The Mayor felt that the Commission should be made aware of the fact that the City has taken a serious step by withholding C.O.s. In this case he felt it was justified. The Mayor ~emarked that this brings to mind the fact that there has been a breakdown in the City's inspection forces in enforcing the obligations of developers to fulfill their promises to the City. The Mayor referred to the fact that the position of Building official has not been filled. He felt this job was not being done; it's not being properly 6onducted and he felt it was time, especially with Commissioner Wische going into the hospital, to address the issue of filling that post, so that the City can proceed -1- MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MAY 26, 1989 with the reorganization and getting the department "up to snuff". The Mayor stated that the genesis of the problem Came forth again with another serious problem with which the Commission is now faced. As a result of this situation and many other situations that he has been advised of, the Mayor felt the Commission should address the situation of filling the post. Mr. Cheney had indicated that he would make that appointment at the next meeting of the Commission. Commissioner Wische will be in ~he hospital at that time. The Mayor did not agree with the recommendation that the City Manager is going to make for the position. George Hunt, Assistant City Manager, responded that most of ~he items the residents are complaining about in this case are swales~ irrigation and paving which are Engineering mat- ~ers and do not fall under the purview of the Building Official. Engineering and the Building Department have been working together. The Building Department has extended to ngineering, (of which Mr. Hunt is acting administrator of in he absense of an engineer), the courtesy of withholding C.O.s because Engineering doesn't have any "hammer" against ~hem. He felt it was unfair to suggest that this is a breakdown of the Building Department's inspection process. The major problem which was the laying of sod in the common ~reas is an Engineering regulated function. The City's Engineering Inspectors have been on it. It is a matter of getting the developer to break the money loose which they did about two weeks ago. Ann Toney and George Hunt made an ~nspection of that area on Thursday, May 25, 1989, and it Was about 60% completed. They informed the developer that ~he C.O.s would be held until they were 100% completed. They indicated that they might be ready for another inspec- tion next Thursday. Mayor Moore referred to photographs that he had been pro- ~ided with and asked that they be made part of the record. The pictures show citronella growing in the swales, six foot ~igh weeds growing in the recreation area and other ~roblems. The Mayor stated he wasn't trying to lay the blame anywhere, but it just brought to light the fact that ~taff was requested specifically by the Commission over two Weeks ago to say how these empty positions are going to be ~illed. A response was received at the last Commission ~eeting and Mayor Moore stated that he was not really Satisfied with the response. -2- MINUTES SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MAY 26, 1989 Commissioner Wische wished to make a recommendation of an individual for the Building Official position. He provided background information on the person and said if the other Commissioners were agreeable he wanted to move to appoint this person. The person is currently the Site Development Administrator for the City. He is also a Technical Review Board member. He is on the Environmental Review Committee, Emergency Preparedness Committee, Staff Advisor for the ~ommunity Appearance Board and Downtown Review Board. He was Chief Plans Review Inspector from 1986 - 1987, Plans Reviewer from 1984 to 1986, Energy Consultant, Poughkeepsie, New York from 1980 - 1984, General Contractor with Kuger Construction~ Poughkeepsie, New York from 1972 to 1984. Relative to education, the individual is currently applying ~or admission to the Doctoral Program of Public ~dministration at Florida Atlantic University. He has a Master's degree in Public Administration, Growth Management, F.A.U / F.I.U. Joint Center for Environmental and Urban problems, Florida Atlantic University, Boca Raton. Bachelor af Professional Studies, Resource Management, Empire State College, State University of New York, Saratoga Springs, New York, 1984. Certifications: Building Official; State of Florida, Department of community Affairs, Building Official; Council df American Building Officials, Building Official; Southern ~uilding Code Congress International, Florida Real Estate License, Dept. of Professional Regulation. This is the ~esume of Don Jaeger. Mr. Hunt stated that Med Kopczynski's resume was equally ilmpressive, if not more so. He believed according to the ~harter, that it was the City Manager's prerogative to nomi- nate before the Commission, then the Commission confirms or denies the nomination. He respectfully requested that the dommission avoid this action and wait until the City Manager ~eturns so that he can make the nomination and then they can ~onfirm or deny it. ~ommissioner Wische asked Mr. Rea, City Attorney, if in view df the City Manager being absent, does the Commission hold ~he power to appoint someone in his absence? Mr. Rea read flrom Section 72.13 of the Charter which says, "In the absence or non-existence of the City Manager, all functions, duties and responsibilities of said officers, under said ~rovisions of this article", (meaning the Civil Service slystem) "shall be fulfilled and executed by the City Gouncil." Basically, for all practical purposes, the entire Civil Service process is in the control of the City Commission when the City Manager is out of town. -3- MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MAY 26, 1989 Commissioner Hester asked that Attorney Rea clarify the state- ment. Mr. Rea restated that for all practical purposes, when the City Manager is out of town, for the purposes of the Civil Service system, it's operation, the appointments, promotions, dismissals, etc., any of the provisions under the Civil Service Act, fall into the hands of the City Commission. Vice Mayor Olenik asked if Mr. Hunt was acting City Manager at this point? Mayor Moore said there is no provision for that in that section of the Charter. Mr. Rea stated there is one provision in the Code dealing with temporary absences of the City Manager, Section 2-31. For you to have an acting City Manager, the City Manager is to make that recommen- dation to the City Commission for approval prior to his departure. The City Commission is supposed to affirm and approve of that acting City Manager. Mr. Hunt remarked that he and Mr. Cheney had reviewed Don Jaeger and Med Kopczynski's credentials extensively. He stated that some of the things that the Commission may not be aware of are the several hundred hours that Med has been involved in as Deputy Building Official with Bud Howell's advice and knowledge, including high level meetings, admin- istrative policy meetings and other things that someone who is being groomed or mentored for a position would go through. These are things that often do not show up on a printed resume but are things that Mr. Cheney would take into consideration when he makes his nomination to the Commission. These are things that Don Jaeger has not had the benefit of over the past couple of years. Mr. Hunt urged the Commission to wait until the City Manager returned. There is no chaos in the Building Department. They have their thumb on Boynton Lakes. There is no need to hurry this a week and a half. Mayor Moore stated that Mr. Cheney has not made a nomina- tion. He has indicated he is going to make a nomination when Commissioner Wische is in the hospital. He stated that if the City Manager was going to make a nomination, why didn't he make it when all five Commissioners were present? Commissioner Hester remarked that even though a person had been groomed for a position, that doesn't mean that the Commission will necessarily accept the individual because they might feel someone else could hold the job just as well. The final decision is left to the Commission. He stated that the City was looking to improve the Building Dept. He felt perhaps it needed to be shaken up by putting -4- MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MAY 26, 1989 someone different in there, to help it get rolling smoother than it has been rolling. Commissioner Hester has been on the Commission for almost five years and he said this is one Of the things that has been plaguing the City. He had hoard a lot of things from developers and builders over and over again. He thought maybe it needed a shakeup. Mr. Hunt said that a lot of changes are coming to pass. In the last few weeks since they have been reorganizing, the ~esponse time on permits and applications has been drasti- Cally changed. A lot of this has to do with Med coming in ~nd reorganizing the Division, streamlining and instituting a lot of processes. Mr. Hunt stated that if they gave Med a Chance to do this a while longer and gave Mr. Cheney a Chance to orchestrate this it would produce good results. Mayor Moore took exception to the use of the word '~orchestrate." He stated that the Commission was elected to run the City and it's about time they undertook the respon- Sibility to do it. He stated that based on the qualifica- tions read previously, Mr. Jaeger "is probably the most qualified public servant and public employee in the entire ~ity of Boynton Beach." Vice Mayor Olenik agreed that Mr. Jaeger is very qualified. They worked together on the Community Appearance Board, but he was unfamiliar with Med Kopczynski's qualifications. He had not reviewed his resume. He has always stood very firm 9n the Civil Service process. The Vice Mayor compared the ~ommissioners to the Board of Directors of this organiza- tion. Mr. Cheney is the President and his department heads report to the President. In our Charter the Commissioners ~ave the responsibility to approve or not approve recommen- dations from the City Manager. They are a City ~anager/Commission form of government. The Commissioners are the policy makers, not the day to day administrators. if they are not happy with what the City Manager wants, then heir alternative is to remove the City Manager through the rocess that's spelled out in the Charter. He was not pre- pared to subvert the Civil Service and the Charter of the City and make a personnel appointment that is going to cir- Cumvent the proper procedures. He couldn't understand why 5:00 on a Friday before a three-day weekend, when . Cheney is not here, that this was occurring. He had ~eard positive feedback from the community relative to the Building Dept. His own father, who is a contractor in the City, has been shocked at how quickly he has been able to ~et things through in the last month and a half. He didn't now if it was because of Med or if it was because of the -5- MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MAY 26, 1989 lack of Bud. He is just happy that it is moving in the right direction. He stated that the Commissioners could make whatever motion they liked but at this point he was not ready to circumvent the Charter of the City and begin making personnel decisions outside the norm. Commissioner Wische referred to Vice Mayor Olenik's comment about things turning around in the last month and a half. He commented that that is when this Commission took over. ~ommissioner Hester agreed and said that maybe that is the reason things are moving ahead now. The Commission has begun to exert more pressure to get things done that have not been done. Vice Mayor Olenik agreed. Commissioner Hester stated that Mr. Cheney had spoken to him about his intentions. Personally, Commissioner Hester would have liked for the Commission to be able to review the resumes of two people. He had nothing against Mr. Cheney's appoint- ments but again, he still thought the Building Dept. needed a shakeup. The only way to do it was to make a change at the top. Mayor Moore commented immediately after Commissioner Hester: That's not subservient to the City Manager. Let me just bring it out in the open. The reason this meeting was called... I called because he was out of town. And nobody is circumventing anything. Mr. Hunt: ...but Mayor... Mayor: Hold it, hold it, I'll call on you in a minute. It's within the total legality of the Charter. It's done. We've got to get this thing on the move and your statement about Mr. Cheney being the President of this corporation is about as far removed from the facts as I could think of anything. I'm the President of this cor- poration and I'm elected by the people. He's at best the Executive Director which carries out our orders, okay? He is not the President of this corporation. Maybe people have gotten brainwashed over the years into thinking he was. He's not. And we're not circumventing anything. I per- sonally think, as I said, Mr. Jaeger, after hearing these recommendations and these -6- MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MAY 26, 1989 Mayor: (Con't) qualifications, let's give it a go and see what happens. That's my feeling. I would not vote for the second man or the man he intends.., that he's told us privately that he intends to nominate because I think he's part of the problem that we've got. The only reason he's turned around is because we've been on his back with both feet, since we've been elected as Commissioner Wische said. I mean Bud Howell was one of my closest personal friends but he's been out to lunch for the last year. He knew he was going to retire. Med has been running the department. That's all I've got to say. Mr. Robert Foote, in the audience, asked the Mayor if the public would have an opportunity to speak on the issue. Mayor Moore told him that there wasn't going to be a Public Audience for this. The Commission was discussing the matter. Commissioner Wische moved that Don Jaeger be given the job Of Building Official. Commissioner Hester seconded the motion. Some discussion took place on whether to accept comments frOm the audience or not. Vice Mayor Olenik thought if Someone in the audience wanted to speak, they should be allowed to do so. Mr. Hunt informed the Commission that this was a violation of a Council/Manager form of government and the City would probably lose it's I.C.MoA. recognition as a Council/Manager form of government with this action. The International City Manager's Assoc. looks upon a Council/Manager form of government as a policy-making body that gives directives to a chief executive officer which is the Manager. Mayor Moore didn't think this would take place. Vice Mayor Olenik remarked that he was not arguing Don Jaeger's merits. He felt he was a very qualified per- ~on. His reason for his vote at this time was simply because he was not comfortable with the process. -7- r ? T MINUTES SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MAY 26, 1989 The following discussion took place between the Mayor and Vice Mayor: Mayor: Okay, well carry it on through. He's (Cheney) indicated that he's going to appoint Med, okay? I would never vote for that. If he's (Hester) seconded the motion, obviously he agrees that he wouldn't vote for him. (Med) Olenik: There may be three votes already... Mayor: No not three votes.., he's not going to be here. So we're paralyzed for the next 45 days. And what he's going to do when he comes back.., and if Mr. Cheney were here I'm sure he would very quickly nominate the guy he wants, okay? And whether it passed or not is academic but if it didn't then he is going to keep nominating guys and I don't think he would ever nominate Mr. Jaeger. So we've got another snafu and it will be another two years before we fill the post. That is the practical aspect. Mayor Moore asked if anyone in the audience wanted to make input on the topic. Mr. Bob Foote spoke not only on his own behalf but also on Dehalf of his wife from the Art of Framing. Mr. Foote felt this was harrassment of our City Manager, to take action ~hile he is away that will obviously be an affront to him. Mayor Moore asked Mr. Foote who he thought was running this town, the Commission or the City Manager? Mr. Foote responded that he respects the form of government ~hat we have. He respects the Commission's ability to fire ~he City Manager. He doubted that any City Manager would want to come to Boynton Beach if he knew that the Commission ~ould step in and take his position and his functions. Relative to Don Jaeger's qualifications, as a person who had ~ecently seen his work, on three out of three issues that fhe Mayor himself recognized as being problems, Mr. Foote ~hought Mr. Jaeger had been wrong on all three. He didn't know that the City was gaining with Don Jaeger's abilities as demonstrated on the sign issue. Linda Grubb a resident in Boynton Lakes North, addressed Mr. Hunt and said there is chaos in the Building Dept. On the cul-de-sac where she lives there is a house that was -8- MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MAY 26, 1989 issued a C.O. The builder was permitted to close. This is not a Lennar house, it was one of his sub-contractors. The people who own the house came to Florida Power & Light to pay their deposit for an electric meter. There was no wiring in the house and the C.O. had been issued. There is no way that this should have happened. When did the chaos go away, she asked? According to Ms. Grubb, this is not the only incident of a house being issued a COO., that never should have been. Mr. Hunt responded that there is a separate electrical per- mit and electrical inspection made. He couldn't comment because he had never heard of that circumstance. He asked ~hat she provide the details so that the situation could be qhecked on further. She commented that the general situation in the Building Dept. is chaotic. There was some applause in the audience. Mr. Hunt remarked that most of these things are Engineering issues, not Building Dept. issues. They are City issues, however, and Mr. Hunt stated that is why the Manager's office is involved now and they are not issuing C.O.s. Long before the Commission got involved in this particular situation, the City had been telling Lennar Homes for six ~onths that the City wasn't going to issue them any more ~.O.s. Ms. Grubb elaborated on the situation in Boynton Aakes North. Ann Toney, Assistant to the City Manager remarked that for ~he record she wished to state that no C.O.s had been issued ~n Boynton Lakes since February, 1989. They were currently holding 19 C.O.s. Mr. Joseph Molina, 811 S.W. 6th Avenue, Boynton Beach, addressed the Commission. He believes that questions of management regarding the personnel of the City have to be directed to the managers. Otherwise, every issue that comes UP is going to be driven to the Commission. Mr. Molina Stated that the Commission could direct the managers to do ~heir job in a more efficient and competent manner but not ~o run the department and have chaos in each department and have men fighting with each other. He thought the workers ~hould know who their manager is. Mr. Craig Livingston, addressed the Commission. He is friends with both Med and Don. Mr. Livingston was comfort- able with the work that Med has done in the past few weeks. Mr. Livingston had talked to Med a number of times. Med had asked for feedback from various people at the Chamber of -9- MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MAY 26, 1989 Commerce on things that could be done to streamline the pro- cess. He felt both were very capable individuals with good experience. He asked that the Commission allow Mr. Cheney to select the person for the position. Mayor Moore called for a vote on Commissioner Wische's motion made previously to appoint Don Jaeger as the Building official. The motion passed 3-1. Vice Mayor Olenik voted against the motion. Fourth of__~Ju__l¥ Fireworks Pro~ram Mayor Moore stated that this came up at the last Commission meeting when the City had been asked to spend $4,000 for a barge. The item had been TABLED so that more investigation Could take place. Mayor Moore stated that if we had checked With Murphy Construction Company about 6 weeks ago, we could have got a barge for free. As he understands it, we have ~15,000 budgeted for the fireworks program which is a lot of money. He checked to see if we could have a joint program with Lantana. They have $6,000 budgeted for this program. He had hoped to get a barge for free, put it half way bet- ween the two cities, have Boynton Beach put in $5,000 and ~antana put in $3,000 and have a good show. At this point the Mayor asked that the Commission limiting it's expenditures to $6,000 and shoot it Qn a land site under the Fire Marshal's direction like to save $9,000. This project is not jointly With the Chamber of Commerce. consider somewhere · He would funded Vice Mayor Olenik asked if at this date there is a land site %hat could be used. Mayor Moore remarked that previously it had been done off the point just south of Shooters. The Commission proceeded to discuss how it was handled last year. Mr. Hunt mentioned that for the fireworks display alone it was $7,000 last year. The Commission decided to direct Mr. Frederick from Recreation & Parks to see if the display could be arranged 0n land to save money. If this is impossible because of ~ire Marshal regulations or other factors, then we would have to go to a barge. The Commission requested that this information be ready for the next meeting. Tradewinds Suit Oral argument took place on Thursday, May 25, 1989. The three judge appeal panel will be taking another advisement. We could have a decision in anywhere from one month to as -10- MINUTES - SPECIAL CITY COM34ISSION MEETING BOYNTON BEACH, FLORIDA MAY 26, 1989 long as a year. The Mayor wanted to know if there was any way that the City, without being unethical, could request since this was of grave public importance, that this matter be expedited. Mr. Rea reported that the issue argued in court was whether or not the City was in contempt of court for failing to pass the ordinances. This includes the fine. The issue was whether or not the Appellate Court's original muling was clear enough as far as what they believed we sihould do and what Tradewinds should do under the settlement ~greement. When the decision came out both sides were Claiming a victory. The issue is whether we're interpreting the original Appellate Court's decision properly requiring Tradewinds to have amended applications and go through public hearings or whether or not that is unnecessary and as a result we should be held in contempt. Mayor Moore remarked that he had read in the paper that our awn attorney had admitted that the City is under an obliga- tion to rezone the property. Mr. Rea said that is the posi- tion the City has always taken in Court, that we're under the obligation to comply with the settlement agreement. Mr. Rea stated that the real question is how do you comply with the settlement agreement? Whose interpretation is correct, theirs or ours? If ours is incorrect we will be found in contempt of court. It is possible that they could Send the entire contempt issue back to the Circuit Court for a new hearing, to see in fact, under the criteria that they establish whether or not we're in contempt of court, by going through a completely new evidentiary hearing. Vice Mayor Olenik remarked that he would like to see the City ask them to expedite their findings if that wasn't out of line. Mayor Moore stated that it was of great public interest to a lot of people in this city. Vice Mayor Olenik Stated that he was waiting to find out what the DCA is saying, so if we could get the information that much quicker it would make him happy. Mr. Rea acknowledged that he could not contact the judges with such a request. Mayor Moore stated that the developer's attorneys had fur- nished him with a site plan of how they intend to develop the property. He would like to have authority to talk and to work out some kind of a proposed settlement good or bad and bring it back to the Commission to consider without obligation to anybody. The Mayor elaborated and stated that he felt very strongly that nobody is arguing about the fact that we lost the suit and are under a mandated court order which nobody is appealing to rezone this property. He stated that if everyone agrees that we are under a mandated -11- MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MAY 26, 1989 court order which is really not a issue and not under a~ppeal, to rezone the property, that is the first step to cut off the damages. Then they admittedly have to come back through with a site plan for the Commission to approve. So that part of it is still within the City's control. They're not arguing that. Mr. Joseph Molina addressed the Commission again. He remarked that the Commission represents the City not a devel- oper. He stated that he was in attendance at the hearing ~n Thursday and he heard nothing about our possibly losing ~he case at all. The Mayor said we are talking about a fine. Mr. Molino remarked that the fine is at an end as Of this hearing and if we're going to pay, we're going to pay up to this hearing anyway. His point was that the City Should allow it to run according to the laws that are on the books for the City, County and the State and see whether or not the Court of Appeals comes down with a decision in our favor. Then let the developer come in with whatever propos- al he wants to submit here. Mr. Molino stated that the developer is not going to suffer because if he wins he will Sell the property for an incredible sum. Mayor Moore asked the Commissioners if they wanted to just let it ride even though it could be another year. Vice Mayor Olenik said he would like to see if it could be expedited. The Mayor stated that he couldn't really call the judge either. However if the request were made, explaining that we're really "under the gun" on this thing, it might make a difference on everyone taking a different Outlook. The site plan was available for examination. ADJOURNMENT There being no further business to come before the Commission, the meeting properly adjourned at 5:45 P.M. -12- MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MAY 26, 1989 /~~CITY F~4YNT EACH / // Mayor vice Commi s s-~one Commissioner ATTEST: Czty~erk Recording Secretary (One Tape) Commissioner -13-