HomeMy Public PortalAbout2004-10-19 Regular Meeting181
COUNCIL MINUTES
REGULAR MEETING - OCTOBER 19, 2004
The Regular Meeting of the Bal Harbour Village Council was held on Tuesday, October 19,
2004, in the Council Chambers, at Bal Harbour Village Hall The meeting was called to
order at 9 00 a.m by Mayor Roth Those present were
Also present
Mayor Seymour "Sy" Roth
Assistant Mayor Peg E Gorson
Councilman Howard J Berlin
Councilman James E Boggess'
Councilman Joel S Jacobi
Alfred J Treppeda, Village Manager
Ellisa L Horvath, Acting Village Clerk
Richard J. Weiss, Village Attorney
Tara L Gould, Village Attorney
As a quorum was determined to be present, the meeting commenced.
2. PLEDGE OF ALLEGIANCE: The Pledge of Allegiance was led by Village
resident Dina Cellmi
3. APPROVAL OF MINUTES: A motion was offered by Councilman Gorson
and seconded by Councilman Jacobi to approve the minutes of the September 21, 2004, Regular
Meeting, and September 21, 2004, Second Budget Hearing The motion carried unanimously (4-
0), and the minutes were approved as submitted
ORDINANCE FIRST READING: Mayor Roth requested that this item be
taken out of order, since Mr Cypen needs to leave An ordinance was read, by title, by the
Village Clerk amending sections of the Employee's Pension Plan
Steven Cypen, Pension Attorney, explained that he has been asked to prepare
amendments to the General Employee Pension Plan, with the majority of the provisions being
housecleaning required by Federal or State law or prior existing agreements He stated the
two important provisions are the definition and creation of a dual service employee and the
DROP (Deferred Retirement Option Program) plan He explained that most plans have these
items Mr Cypen explained the DROP plan He reported that the Florida retirement system
enables people to retire from the pension plan, while remaining in the employ of the Village
for up to five years Mr Cypen explained that this allows for departments to plan for the future
and reduces the cost to the system, because there's no pension contribution for those five
years, and it allows the employee to have a lump sum when they actually leave He stated
that this ordinance is on for first reading again, since some changes were made.
Mayor Roth opened the public hearing There being no comments, Mayor Roth closed the
public hearing
1 Councilman Boggess was appointed after Ordinance First Reading
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A motion was offered by Councilman Jacobi and seconded by Councilman Gorson to approve this
Ordinance on first reading. The motion carried with the vote as follows: Mayor Roth aye; Assistant
Mayor Gorson aye; Councilman Berlin aye; Councilman Jacobi aye.
ORDINANCE NO.
AN ORDINANCE OF BAL HARBOUR VILLAGE, FLORIDA, AMENDING
CERTAIN SECTIONS OF THE VILLAGE CODE AT ARTICLE II, "EMPLOYEE'S
PENSION PLAN," CHAPTER 13 TITLED, "PENSIONS AND RETIREMENT
BENEFITS," TO ADD TO SECTION 13-26 TITLED "EMPLOYEE'S PENSION
PLAN -DEFINITIONS," NEW CALCULATIONS FOR THE DETERMINATION OF
ACTUARIAL PRESENT VALUE, TO ADD TO THE CURRENT DEFINITION OF
"CONTINUOUS EMPLOYMENT," AND TO ADD A NEW DEFINITION OF "DUAL
SERVICE EMPLOYEE;" ADDITIONALLY TO AMEND SECTION 13-28 TITLED
"RETIREMENT DATES AND RETIREMENT BENEFITS," TO DEFINE
RETIREMENT BENEFITS FOR "DUAL SERVICE EMPLOYEES," PROVIDE FOR
ADJUSTMENTS TO THE VILLAGE MANAGER'S MONTHLY RETIREMENT
BENEFIT, AND TO REDEFINE SECTION 13-28(J), TITLED, "REQUIRED
DISTRIBUTIONS," AND ADDITIONALLY TO AMEND SECTION 13-30 TITLED
"DISABILITY" TO ALLOW FOR RULE MAKING AUTHORITY; AND TO ADD
AT SECTION 13-39 TITLED "DEFERRED RETIREMENT OPTION PLAN (DROP)"
TO CREATE A DEFERRED RETIREMENT OPTION PLAN; PROVIDING FOR
EFFECTIVE DATE.
4. DISCUSSION OF OPEN COUNCIL SEAT: Mayor Roth explained that
eleven resumes were received, with one resume rescinded He thinks that every one of the
residents would be capable of serving on the Council Mayor Roth reported that the
appointment would be to fill the remainder of the term for the District #3 seat, until the April
election
Rhea Kelly, resident — 77 Camden Drive, recommended James Boggess to fill the seat.
Nicky Caldwell, resident — 10275 Collins Avenue, discussed her interest in serving and
requested the Council's consideration
Mayor Roth thinks that the Council should be careful not to select someone that would be
given an edge at election time, because this seat is up for re-election in April 2005. Mayor
Roth stated that he is leaning towards Mr Boggess, because he previously served on the
Council and knows the laws, etc He explained that it's his opinion that it would be unfair to
appoint someone to the seat that would have an advantage at election time Mayor Roth
thinks that Ms Caldwell is qualified and encouraged her to run in the April election
James Boggess, resident-10210 Collins Avenue, stated that it would be a pleasure to be
back on the Council He advised that he served for 15 years and enjoyed it Mr Boggess
explained that he would be glad to serve and will not be running for re-election in April.
Councilman Berlin expressed his appreciation for the resumes that were received He
acknowledged that Ms Caldwell attends the meetings and that Mrs Blachar and Mrs. Karp
would also do an excellent job Councilman Berlin doesn't see the necessity to fill the seat at
this time, but does see an opportunity to appoint Mr Boggess, who has a considerable
amount of experience He discussed the learning curve there would be with a new person and
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pointed out that there would not be one with Mr Boggess Councilman Berlin's opinion is to
appoint Mr Boggess to fill the seat
A motion was offered by Councilman Berlin and seconded by Mayor Roth to appoint Mr. Boggess as
Councilman for the open District #3 seat. The motion carried with the vote as follows: Mayor Roth
aye; Assistant Mayor Gorson aye; Councilman Berlin aye; Councilman Jacobi aye.
Councilman Boggess was given the Oath of Office by Mrs Horvath.
5. PRESENTATIONS: None
Chief Hunker announced that the Miami -Dade County Chiefs of Police will be honoring
Captain Klingman and Officer Balikes as Officers of the Month for September 2004, for
rescuing a drowning surfer during one of the hurricanes He reported that 37 officers were
submitted for this award
6. PUBLIC HEARINGS: None
7. ORDINANCES SECOND READING/PUBLIC HEARING:
An ordinance was read, by title, by the Village Clerk, creating Section 2-89 "Defense of
Officials in Ethics Matters "
Mayor Roth opened the public hearing
Babak Raheb, resident— 128 Balfour Drive, doesn't think that this is necessary and stated
that no other city has this He also has a problem that it's retroactive Mr Raheb reviewed
Chapter 112 and discussed legislative intent Mr Raheb has a problem with the language in
Section 2(e)(4) and the definition of adjudicated guilty Mr Weiss explained that there would
have to be a finding of guilt Mr Raheb questioned someone stating "no contest " Mr Weiss
advised that there wouldn't be an adjudication of guilt, in that case Mr Raheb has a problem
with that definition, because the State uses a different meaning, which includes no contest
He advised that he is against this and thinks it should be looked into
Dina Cellini— resident— 211 Bal Cross Drive, stated that the Charter speaks to the amount
that the Village Manager can spend without Council approval ($2,500) She discussed that
the Village Manager has discretion to approve or deny legal expenses and questioned when
the public will know the amount being spent for legal defense Ms Cellini discussed the
definition of Village funds and questioned at what point an amount of those funds is
determined and if there's a cap on the amount of legal fees that would be paid per case She
advised that she also has a problem with the term of adjudicated guilty, because she sees
where an official may be charged with an ethics violation and may plead "no contest" and
adjudication is withheld, in which case those legal fees would be covered Ms Cellini thinks
that it's wrong for taxpayers to pay to defend someone who is guilty of an ethics violation She
stated that if the person is adjudicated guilty, then the Village wouldn't have to pay, but if
adjudication is withheld, because an official plea bargains or settles, then the legal fees would
be paid under this, which she doesn't think is right She discussed the provision in paragraph
2(e)(4) Ms Cellini stated that if the Official is adjudicated guilty, then the Official is mandated
to reimburse the Village for the legal fees that have been expended on their behalf, but the
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next provision does not mandate the Official She advised that if the Official doesn't pay, then
it's not mandated that the Village has to seek reimbursement from them She thinks that's
wrong and it should be mandatory for the Village to do so Ms Cellini reviewed Chapter 112
and advised that if the person doesn't repay, then the State is mandated to file a civil action
against the individual She advised that she spoke with Robert Myers, Director of the
Commission on Ethics, and was advised that many cities in Miami -Dade County provide for
reimbursement of legal fees for their officials, but no other city provides for the advancement
of legal fees, before there's a hearing or trial Ms Cellini thought that this ordinance was
drafted and passed in Homestead, which isn't true She requested that the Council defer on
this ordinance, until it can be looked into further Ms Cellini stated that the Ethics Committee
meets on October 28th and requested that they review this ordinance
Mr Weiss advised that he has spoken with Robert Myers and it is not within the jurisdiction of
the Ethics Commission to review city ordinances. He advised that Mr Myers stated that they
don't have a problem with the concept of what is being proposed. Mr. Weiss reported that a
similar ordinance has been proposed and is under consideration in Homestead. He explained
that it's not his job to follow what other cities are doing and that he will lead on something, to
protect the Village Mr Weiss stated that there are stronger ordinances in the State that cover
the same subject matter He advised that many cities are paying these kinds of expenses,
without any sort of ordinance Mr Weiss reviewed case law. He explained that they thought
the right way to do this would be by ordinance, to provide a procedure Mr. Weiss discussed
the budget and explained that each year the Council would budget an amount, which would
be public He advised that additional fees for that account would require Council approval. Mr.
Weiss explained that this ordinance provides authorization for the Village Manager to pay bills
out of the budgeted money He stated that the amount of the bills would be reviewed under
the public records law, because they could contain attorney -client privileged information that
would be exempt from the public records law Mr. Weiss stated that any information that's not
privileged would be public He advised that at the end of any sort of litigation, it would be
public
Mayor Roth discussed speakers limiting their time He reported that many cities have a three
minute rule
Mr Weiss stated that North Lauderdale and Pembroke Pines both have ordinances that
reference Chapter 112 He advised that Surfside has an ordinance that is part of their Charter
that references the Florida Code of Ethics for Public Officials, which is Chapter 112.
Mr Raheb requested a response regarding the word conviction He reviewed the definition of
convicted Mr Raheb thinks that this is in direct violation of the State constitution Mr Weiss
stated that it doesn't violate the Constitution and the Council doesn't have any retirement
benefits Ms Cellini advised that she spoke with Mr Cypen and Surfside doesn't have an
ordinance like this one, where they advance legal fees for the defense of their officials in
ethics matters. She doesn't feel that a comparison can be drawn Ms Cellini also reported
that Mr Myers has told her that any representation that he supported an ordinance such as
this would be a distortion Ms Cellini requested that this be deferred until next month She
requested that the ordinance at least be amended to provide that if adjudication is withheld
after a plea of no contest, then those fees are not reimbursable
Mayor Roth closed the public hearing
Councilman Berlin discussed the section pertaining to reservation to pursue the official versus
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185
shall pursue the official He expressed his concern that the word should be "shall," because
they shouldn't be able to skirt from the repayment obligation Councilman Berlin questioned
why it should be a reservation, instead of shall Mr Weiss advised that there is an absolute
obligation on the elected official to reimburse He reviewed Section 2(e)(4) Councilman Berlin
questioned what happens if the official just doesn't pay Mr Weiss stated that the Village
reserves the right to seek reimbursement Councilman Berlin questioned why it's a
reservation instead of shall Mr Weiss stated that the word "shall" could be used, but the
problem is that if the Village looks at a Councilperson and has spent dollars on legal fees and
the person doesn't have any ability to repay them, then they wanted to give the Council
discretion to do an investigation to determine if they want to spend money to try to recover
from the person, who even if they win would be judgment -proof, because there's no money
there He clarified that it's a collection issue Mr Weiss stated that the obligation to reimburse
is absolute Councilman Berlin questioned if it's Mr Weiss' opinion that if the Village Manager
or Council chose not to seek reimbursement, without the knowledge that they couldn't collect,
then it would be inappropriate Mr Weiss stated that it's a judgment call for the Council
Councilman Berlin expressed his concern and advised that he doesn't want people getting a
free ride, if they did something wrong He suggested considering that if they don't pay, then
they would have to step down from their position Mr Weiss thinks that in any ordinance there
are going to be judgment calls for the Council to make He stated that it's a collection issue
Mr Weiss stated that it's his job to empower the Council and thinks that's what ordinances
should do He doesn't think that ordinances should force the Council to do certain things Mr
Weiss thinks that the Charter and ordinances should empower the Council to do their jobs
Councilman Berlin stated that the burden on public officials in this part of the world, with
regards of having to be knowledgeable of all the different rules and regulations that govern
their position, is enormous He discussed how an elected official could unintentionally violate
a provision Councilman Berlin stated that if it's clear that the official violated it, even though
they had no knowledge that it was remotely unethical, then there couldn't be any other
adjudication other than that they violated that provision He questioned if that would be a
circumstance where the Village is using its discretion not to pursue it, because they don't
think it was material Mr Weiss stated that the way the ordinance is written doesn't limit the
Council's discretion to collection issues Mr Weiss reported that it gives the Council the
ability, under appropriate circumstances as seen by the Council at that time, to seek
reimbursement
Councilman Berlin doesn't think that it would be appropriate to criticize the Village Attorney for
innovative work He reported that in every jurisdiction there are ordinances of first impression
that come up that are unique and then everyone follows Councilman Berlin stated that it's his
opinion whether the municipality is the first or the 50th one, shouldn't color whether it's good or
bad He thinks that whether or not anyone else has enacted this or not is irrelevant
Councilman Berlin clarified that Mr Weiss checked with the Ethics Commission and they
didn't tell him not to do it Mr Weiss agreed Councilman Berlin questioned if the Ethics
Commission would have officially told Mr Weiss, if they felt this was problematic or
inappropriate Mr Weiss doesn't want to make his discussion with Robert Myers into a legal
discussion or into an endorsement, because it wasn't He clarified that he spoke to Mr Myers
about the concept of the ordinance before it was drafted and he (Mr Myers) didn't have a
problem with the concept Mr Weiss stated that they (the Ethics Commission) have a specific
ordinance that they operate under and if this ordinance runs "a foul" of their ordinance, then
they would get involved He stated that they have the ability to file complaints, etc Mr Weiss
doesn't see that they have any jurisdiction, in terms of this particular ordinance Councilman
Berlin questioned who they would file complaints against Mr Weiss stated that under this
circumstance, he doesn't know Councilman Berlin questioned if the Village Manager or
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Council are at risk to be subject to a complaint, if this is passed Mr Weiss doesn't believe so.
He thinks that it's unlikely that they would take any action against this ordinance, because he
hasn't any indication of that Mr Weiss thinks that it's more likely that they might have an
opinion about it
A motion was offered by Mavor Roth and seconded by Councilman Jacobi to approve this
Ordinance on second reading. The motion carried with the vote as follows: Mayor Roth ave;
Assistant Mavor Gorson ave; Councilman Berlin aye; Councilman Boggess nay; Councilman
Jacobi aye. Thus becoming:
ORDINANCE NO. 492
AN ORDINANCE OF BAL HARBOUR VILLAGE, FLORIDA, AMENDING THE
VILLAGE CODE BY AMENDING CHAPTER 2 "ADMINISTRATION" BY
CREATING SECTION 2-89 "DEFENSE OF OFFICIALS IN ETHICS MATTERS";
PROVIDING FOR THE DEFENSE OF OFFICIALS; DEFINITIONS; REQUEST
AND APPROVAL; AUTHORIZATION; RESERVATION OF RIGHTS AND
IMMUNITIES; APPLICABILITY; MALICIOUS, FRIVOLOUS OR GROUNDLESS
ALLEGATIONS; PROVIDING FOR SEVERABILITY; PROVIDING FOR
INCLUSION IN CODE; PROVIDING FOR EFFECTIVE DATE.
8. ORDINANCE FIRST READING: This item was discussed earlier in the
meeting
9. RESOLUTIONS/PUBLIC HEARINGS: None
10. RESOLUTION: A resolution was read by title, by Mrs Horvath, requesting
full support for the Building Better Communities 2004 Bond Program Mr Treppeda
explained that the bond is for $2.9 billion and if this is passed, then the Village would
receive $963,000 towards renovations or a new Village Hall/Police Station and $6,500,000
towards a north sewer link He stated that it would also benefit Bal Harbour indirectly, by
improving Haulover Park Mayor Roth explained that the Village would benefit. Mr.
Treppeda reported that this would not raise County taxes, because the other bond is
expiring and this would take its place
A motion was offered by Councilman Berlin and seconded by Councilman Boggess to approve
this Resolution. The motion carried with the vote as follows: Mayor Roth aye; Assistant Mavor
Gorson ave; Councilman Berlin ave; Councilman Boggess ave; Councilman Jacobi ave. Thus
becoming:
RESOLUTION NO. 666
A RESOLUTION OF BAL HARBOUR VILLAGE REQUESTING FULL SUPPORT
FOR THE BUILDING BETTER COMMUNITIES 2004 BOND PROGRAM.
11. LOBBYIST REGISTRATION REPORT: There were no new registrations
12. REPORTS AND RECOMMENDATIONS:
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A. MAYOR AND COUNCIL:
Mayor Roth reported that he presented Senator John Kerry, who was staying at the
Sheraton, with a key to the Village He explained that there was a picture in the Miami
Herald of Senator Kerry, Councilman Jacobi, Chief Hunker and himself, which is good
publicity for Bal Harbour Mayor Roth stated that this is not a political endorsement
Mayor Roth reported that on October 7th, the Miami -Dade County League of Cities had
their annual Installation Banquet at the Sheraton, which 410 people attended
Councilman Jacobi discussed speaker protocol at meetings He advised that he attended a
Golden Beach Council meeting, which had speaker limits and ran smoothly Councilman
Jacobi advised that the Village is looking to see what other municipalities are doing about
time limits and speakers Mayor Roth advised that a survey was conducted and the
majority of cities have a 3-minute time limit He discussed the problem with people
speaking for a lengthy amount of time at the meetings Mayor Roth suggested that maybe
speakers could limit their time voluntarily to 3 minutes Councilman Boggess doesn't want
to become too regulated and thinks that it should be up to the Mayor's discretion to stop
people when they become repetitive Assistant Mayor Gorson thinks that it's important to
follow a 3-minute time limit Mayor Roth suggested seeing how future meetings go and
asked people to limit themselves and to keep comments brief. Councilman Berlin
questioned if Councilman Jacobi plans on coming back to the Council with a proposal
Councilman Jacobi would like to receive ideas from Mr Treppeda and Mr Weiss,
regarding ordinances and how other municipalities are handling the situation Councilman
Boggess suggested using something that has three lights, if the Village is going that way
Mr Treppeda reported that Mrs Horvath has found a system that would do that Mayor
Roth suggested further study on this issue, with the thought in mind to be as least
restrictive as possible
B. VILLAGE ATTORNEY: No items
C. VILLAGE MANAGER:
Request to Expend Forfeiture Funds: Mr Treppeda explained that
Chief Hunker is requesting Council approval to expend forfeiture funds for the following
items
1.) Monthly Payments for 4-Year Lease of Two 2005 Chevrolet Tahoe Vehicles $ 960.00
(Take Home Car Program)
2.) Monthly Payment for 3-Year Lease of One 2005 Ford F150 Pickup Truck $ 495.00
(Take Home Car Program)
TOTAL MONTHLY PAYMENT: $ 1,455.00
TOTAL LEASE: $63,900.00
Councilman Berlin wants to make sure that if the forfeiture funds are not available for the
entire length of the lease, that there are funds set aside to pay for this Mr Treppeda will
meet with the Finance Director because these will be the only leases, other than the
motorcycles He stated that a system should be set up where the Village reserves that
money Chief Hunker stated that there is $600,000 in forfeiture funds and another
$600,000 is pending Councilman Berlin questioned why the vehicles are being leased
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instead of purchased Chief Hunker doesn't think that the total amount of funds should be
used at this time, to purchase them He stated that they are leasing, with an option to
purchase.
A motion was offered by Councilman Berlin and seconded by Councilman Jacobi to approve
$63, 900.00 in forfeiture funds, for the above listed items. The motion carried with the vote as
follows: Mayor Roth aye; Assistant Mayor Gorson aye; Councilman Berlin aye; Councilman
Boggess aye; Councilman Jacobi aye.
Resort Tax Committee Recommendations: Mr Treppeda
reviewed the following items that were recommended for approval by the Resort Tax
Committee, at their meeting on October 14, 2004i
1) New York Media Mission with the GMCVB - October $ 5,000.00
(Registration, Prize Drawings of Trips to Bal Harbour for Media & Agents,
Catering at Sales Calls, and Travel Expenses)
2) Shop Miami FAM — October 7th $ 2,300.00
(Dinner for 42 Guests at Carpaccio and Gift Bags with T-Shirts)
3) American Airlines GMCVB U.K. FAM — November $ 2,700.00
(Welcome Reception and Full -Course Dinner for 18 Guests at Sheraton)
4) Domestic Media FAM — First Week of December $ 10,550.00
($2,950 for Hotel Rooms, $6,600 for Meals, $1,000 Additional Costs)
5) New York Times Travel Expo — March 2005 $ 10,000.00
(Registration Space, Shipping Collateral, and Travel Expenses)
6) Advertising Consulting — 5 Month Project $ 40,000.00
($8,000 per Month for 5 Months, Authorize Village Manager to
Enter into an Agreement with Studio D & Propeller Branding Company
for Advertising Services)
7) Appointment of Resort Tax Committee Member — Lisa Perri -Molina
(General Manager for Neiman Marcus)
TOTAL: $ 70,550.00
A motion was offered by Councilman Gorson and seconded by Councilman Berlin to approve
$70,550.00 in resort tax funds, for the above listed items, and to appoint Lisa Perri -Molina to the
Resort Tax Committee. The motion carried with the vote as follows: Mayor Roth aye; Assistant
Mayor Gorson aye; Councilman Berlin aye; Councilman Boggess aye; Councilman Jacobi aye.
13. OTHER BUSINESS:
Rhea Kelly, resident — 77 Camden Drive, requested a review of the smart passes and
security for the Security District Mr Treppeda reported that there will be a workshop
meeting on November 9th, at 7 30 p m in the Council Chambers He advised that the
meeting will be posted on Channel 20 and postcards will be mailed
Ms Kelly discussed the following Code violations and people not being cited grass not cut
at Park Drive, trash along Bal Bay Drive, dump truck at 70 Camden Drive, etc. She
questioned where the Code Enforcement Officers are Chief Hunker advised that they are
in the interviewing process Mayor Roth explained that the Chief is working on improving
code enforcement Mr Treppeda stated that the Village has the power to fine people, not
to physically force them to comply with the Code Chief Hunker discussed the enforcement
that is being done and stated that anytime a violation is brought to the Village's attention, it
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189
is followed up on
14. ADJOURN: There being no further business to come before the Council, a
motion was offered by Councilman Jacobi and seconded by Councilman Berlin to adjourn. The
motion carried unanimously (5-0), and the meeting adjourned at 10:13 a.m.
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/ Ma , ` or Seymour Roth
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Attest
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egular Council Meeting 10/19/2004 9
Ellisa Horvath, CMC
Acting Village Clerk
Regular Council Meeting l 0/ 19/2004 9