CHARTER REVIEW COMMISSION

APPROVAL OF MINUTES

Mr. van den Berg corrected page 6 of the minutes of June 29 to read, “The State Attorney has said he is not sure if he can enforce it.” Mr. Horan affirmed that the sentence should read “State Attorney” and not “Attorney General.”

Motion by Mr. Boyko, seconded by Mr. McMullen, to approve the minutes of June 29, 2006, as amended.

All members present voted AYE.

PROOF OF PUBLICATION

The proof of publication, as shown on page _______, for this meeting’s scheduled public hearings was filed into the Official Record.

PUBLIC HEARINGS

Ms. Yurko advised that the Charter requires for this final hearing that the adoption of any amendment must be by a majority of the entire membership of the CRC. At least eight votes are needed to put an item on the ballot. Also, she advised that the Charter requires that expenses be verified by a majority vote of the CRC. At the last meeting, there was discussion about her fees and the budget for that. She said she has provided Chairman Tucker with the itemized expenses for her fees and she will be happy to provide copies of that to the full CRC if they would like them.

Chairman Tucker stated this came up at the Board of County Commissioners meeting. He clarified that he had not seen any financial information until he received the documents tonight just prior to this meeting. He explained these had been in his mail when he returned home from vacation. He said evidently there was some confusion as to that point.

Mr. van den Berg asked if it would be appropriate to defer to the Chairman the authority to review and approve or modify the request of the attorney. Chairman Tucker pointed out that he thinks the charter calls for the expenditures of the CRC to be covered by the BCC. The CRC doesn’t set the budget and they didn’t set the proposed budget initially. The amount was pulled out of the air; and, if anything, was based on the previous times. He thinks with the job they did and the expenses it took to do it, they did a good job; and it costs them what it costs.

Upon inquiry by Ms. Hammontree, Chairman Tucker said additional expenses are for advertising and things sent out.

Motion by Mr. van den Berg, seconded by Mr. McMullen, to defer to the Chairman the authority to review and approve or modify the request of the attorney for her expenses.

All members present voted AYE.

RESOLUTION NO. 1

Chairman Tucker opened the public hearing for Resolution No. 1, proposing amendment of Article II of the Seminole County Home Rule Charter to provide: A method of setting salaries of County Commissioners and to set limits on increases.

Ms. Yurko read the pertinent language as provided.

Upon inquiry by Mr. Maloy, the CRC discussed the procedure to follow for the public hearing and voting on the ballot language.

Mr. Miller asked if they are sure this is the last public hearing. He said there may be questions about some of the changes the CRC made--whether they were significant enough to cause additional public hearings. He asked will this meeting satisfy the three public hearings.

Ms. Yurko stated she thinks at this point, the changes that the CRC make are in the nature of clarifications. She said she has some suggestions for changes to Resolutions No. 2 and No. 3 that would be in the nature of deletions. She also has changes that deal with the intent clauses for Resolutions No. 5 and No. 6. She thinks there is a rule of reason that a judge would impose that says they have had substantial compliance with the hearing requirements and they are allowed to make clarifications as long as they are not substantial. Discussion ensued.

Ms. Yurko stated the County Attorney is present tonight as well as the Deputy County Manager. She said she had a meeting with them several days ago about the resolutions and issues that may deal with implementation, because a number of these are going to call for ordinances to be done by the County Commission. She thought it was important to have that meeting to iron out any problems ahead of time.

Robert Webster, 3435 Holliday Avenue, addressed the CRC to state he thinks the intention to get them to comply with the ordinance is correct, but, unfortunately, this resolution happens to have two subjects and Chapter 166 says for all resolutions or ordinances there shall be only one subject. He said he is in total agreement that the County should pay the Commissioners by ordinance, but with the second portion added, you get into the second provision which someone could attack it legally, because they have done something that pursuant to the statute and Constitution is wrong.

No one else spoke in support or in opposition.

The Speaker Request Form was received and filed.

Chairman Tucker closed the public input portion of the public hearing for Resolution No. 1.

Under discussion, Mr. Horan asked if the changed language underlined in the Resolution was changed as a result of the first meeting. Ms. Yurko answered that was correct. Whereupon, Mr. Horan said there have been no changes since that time, so that particular resolution has had at least three public hearings on the exact and precise language.

However, Mr. Van den Berg said that wasn’t correct. He said the CRC defined which CPI they were going to use and he thinks that was done at the second meeting. He said he doesn’t think that is changing the substance.

Ms. Yurko stated this Resolution is one she has an increasing level of comfort with. They are substantially complying. Public hearings mean you have public input and due process means that you may make changes. To the extent they have flushed this out and made clarifications and made it a better product, she has no problem with that whatsoever. She thinks they can proceed and not have to continue worrying about that. She explained she gave the CRC the advice at the beginning of the process because she didn’t want to see a dramatic departure from the substance of these amendments. She doesn’t think they have seen that. She thinks they are well within the charter requirement of having three public hearings over any proposed amendment or revision.

Ms. Yurko advised that there is no single subject requirement rule for charter amendments. That has been litigated in the Fifth District Court of Appeals case for Maxwell.

There was no additional discussion by the CRC, therefore, Chairman Tucker closed the public hearing on Resolution No. 1.

RESOLUTION NO. 2

Chairman Tucker opened the public hearing for Resolution No. 2., proposing amendment of Article V of the Seminole County Home Rule Charter to include provisions which prohibit: (1) Certain Lobbying by Seminole County Commissioners; (2) Bidding by the Seminole County Tax Collector or his or her employees on tax certificate sales; and (3) Certain officials and their employees from accepting compensation for working in others’ election campaigns.

Ms. Yurko said this is one of the Resolutions she has had an increasing level of discomfort with regarding inclusion of the Constitutional Officers in the ethics ordinances. She said her advice at the beginning of the process was that this was a gray area. She thought they could do it and there was really nothing on point. It was her hope that during this process, they would get an increasing comfort level from the Constitutional Officers that they were supportive of this. Not only has that not happened, but they have heard secondary threats of litigation on this point. With that in mind, she wants to put some things on the record that deals with the CRC’s authority to alter the Clerk’s functions. That is, in her opinion, an authority the CRC has that is separate and apart from their authority for other Constitutional Officers. That constitutional provision (copy received and filed) says that without otherwise as provided by charter, the Clerk is the ex officio clerk to the Board of County Commissioners, auditor, recorder and custodian of county funds. She said with that language, she has a high comfort level that the CRC can alter the Clerk’s duties and they are doing that in section five. There is also a case (copy received and filed) called Alachua County v. Powers that says the CRC has the authority to vary the duties of the Clerk. She has a comfort level that the CRC has authority to do that. She has a comfort level as well with the independent audit committee. They now have clarification that makes it clear that that is an advisory committee that is a technical resource to the Board of County Commissioners, which gives her the comfort level under the Alachua County case that says they can’t delegate sovereign governmental authority. There is also an AGO (Attorney General Opinion) that says there should always be a county officer charged with carrying out the duties presently assigned to constitutional officers. Even the audit of constitutional officers, to the extent that there is authority under Article VIII for the clerk to be the auditor of county funds, it would seem to her that that authority could be transferred out just like the other things they are transferring out. She said that is a little bit of a gray area, but they have put in some limitations by the way they had defined county funds. She said, however, that gets uncomfortable when they look at the ethics ordinances, they know that under Article VIII, they are allowed to abolish county constitutional officers and make them charter officers; and if they do that, they have carte blanche to do what they want with the constitutional officers. She said they have not done that. They have kept them as constitutional officers. They have language in the charter called a conforming change that says basically that, unless otherwise provided in the charter, the constitutional officers shall remain constitutional officers. She explained she has talked to people all over the State about that and there is growing sentiment that because of the emerging home rule authority, they can piece meal and take out constitutional duties of the constitutional officers, but she can’t find a case or AGO that supports that. She said they may be a case of first impression, which could be a very costly and time consuming litigation. She said the issue is much bigger than just the ethics ordinance. It goes to the issue of how the County is able to govern the constitutional officers. She said there are two cases she is familiar with that do nothing but call into question more the ability to do this. The Kelly case basically says you can’t transfer the Sheriff’s duties piece meal. It predates the 1968 Constitution revision, so she has not been that worried about it. But the case she continues to worry about is the Cook case which is a 2002 case. In that case, the court said you can’t have term limits for constitutional officers without abolishing the constitutional offices. She said she had hoped they would have more support for this, but she is hearing the opposite. Her recommendation would be that they revise Resolutions Nos. 2 and 3. She distributed copies (received and filed) to take out reference to the Constitutional Officers and that would involve in Resolution No. 2 taking out the reference to the Tax Collector.

Ms. Yurko read the pertinent language as presented.

Mr. Webster stated Chapter 166 very clearly distinguishes that any resolution or any ordinance must not have more than one subject. He referred to the First Amendment of the Florida Constitution, 20.25, and said he thinks the CRC is taking a big chance on getting a court action on this and he is not sure they would win.

No one else spoke in support or in opposition.

The Speaker Request Form was received and filed.

Chairman Tucker closed the public input portion of the public hearing for Resolution No. 2.

Mr. Maloy said on some of the information brought up, he finds it somewhat troubling that after going through months and months of these discussions and thousands of dollars of legal fees, that all of a sudden there would be a different proposal brought forward. As far as not finding support for this, he said this board has always supported these proposals, sometimes by narrow margins and he knows there has been dissent, but to him the issue has been that they, as a board, have looked at this and debated it hours and hours and come up with a proposal that has met their approval. He added that he does not feel comfortable switching things around at the last minute. As far as the Tax Collector himself, he submitted proposed language for an alternative charter amendment. Obviously, he must have thought the CRC had some sort of power over the office and the Constitutional Officers. They are an independent board who answer to the people. If they sit and are concerned about who’s going to sue them on every motion, they’ll never get anything done. He thinks they need to do what’s right and go forward and make their case be known.

Ms. Dietz said Ms. Yurko is saying that this is opening up the County to litigation. If they know that’s going to happen and they are probably going to lose and it is going to cost a lot of money, is that doing Seminole County a favor. She said she doesn’t think so.

Mr. Lovestrand called for a point of order because he thought this type of discussion they are now having was what they would hold until the end of the meeting. He said the discussion they have now should be on the details of the resolution itself and the desirability/undesirability would be done at the end when the CRC votes on each resolution separately. Discussion ensued.

Chairman Tucker stated that, without objections, they will limit the discussion to the issues brought up during the public hearing by the public and then close the public hearing and go from there.

Upon inquiry by Mr. Miller, Ms. Yurko said she has a very high comfort level that they are fine with not violating the single subject law.

There was no additional discussion by the CRC, therefore, Chairman Tucker closed the public hearing on Resolution No. 2.

RESOLUTION NO.3

Chairman Tucker opened the public hearing for Resolution No. 3, proposing amendment of Article V of the Seminole County Home Rule Charter to add new provisions; (1) to prohibit certain gifts to officials (or any of their relatives); (2) to prohibit attempts by officials to influence actions coming before their agency which could result in private gain to the officials of their relatives, and providing for enforcement.

Ms. Yurko read the pertinent language as provided.

Mr. Webster read 166041, Procedures for Adoption of Ordinances and Resolutions. He said it is pretty clear what the law is. He said in this particular resolution, there is any number of good, solid issues which if they had been framed in an issue by themselves anybody would vote very clearly positively on some of them. When you lump them all together, it’s almost like saying if you like this law, to get this one, you’ve got to take all the rest of them with it. He said there’s no reason for that.

No one else spoke in support or in opposition.

The Speaker Request Form was received and filed.

There was no additional discussion by the CRC, therefore, Chairman Tucker closed the public hearing on Resolution No. 3.

RESOLUTION NO. 4

Chairman Tucker opened the public hearing for Resolution No. 4., proposing amendment of Article V of the Seminole County Home Rule Charter to provide new requirements of full disclosure of ownership of property which is the subject of land use approvals in Seminole County, Florida.

Ms. Yurko read the pertinent language as provided. She said she thinks County Attorney Robert McMillan has some suggested changes in the way of clarification.

Mr. Maloy said he thought the County Attorney was separated from the CRC.

Mr. McMillan stated Ms. Yurko discussed some of these issues with him on Monday and he expressed some implementation concerns. He said he has not rendered any opinions relative to how many hearings or whether they met the requirements of anything, because that is not his job. He said neither he nor his client has taken any position on that. His concerns were simple implementation concerns and if it passed, things he thought might be a question, not of legality, but how they would go forward. He said he wants it clear that Ms. Yurko and the CRC understands that violation of a County ordinance is not a crime and it cannot be made a crime by the County Commission nor can the County Commission pose criminal penalties for violation of the County ordinance. He said it wasn’t clear to him on this resolution from the language being proposed. There are no time limits on rescinding of land use, so it was questionable whether or not ten years after a rezoning is done if someone could come show someone’s brother-in-law was not adequately disclosed, does the zoning go away even though the structure has already been constructed. He said he wasn’t sure what the scope of that was supposed to be. He suggested that the issue would have to be raised in the same context in which you would challenge a zoning action. The other issue is that ownership is irrelevant to a land use decision. Usually when you revoke a permit or something based on an application, it has to be based on the material misrepresentation of fact. Since who owns the property is irrelevant to whether you get the zoning or not, legally there is a question in his mind of how you rescind on information that would be immaterial to granting or denying the rezoning. He said he has some real concerns about how that would work. He said he thinks there should at least be a time limit.

Ms. Yurko said she designed a solution which she discussed with Mr. McMillan and she will be happy to bring that up.

Mr. van den Berg said he spoke to Mr. McMillan today and thought he made three excellent points where the provision could be made more effective and more equitable. When they get to the discussion, he is prepared to advance those for incorporation.

Mr. Webster stated he agrees with Mr. McMillan on this. He said it’s nothing that’s necessary and something that just boggles you down. He said under Florida law and the U.S. law, there are statute of limitations and this is the sort of thing that nobody wants to get involved with. This is something where somebody feels that somebody might get an advantage. He said there’s some merit there but there’s less merit when you’re looking at the big picture.

No one else spoke in support or in opposition.

The Speaker Request Form was received and filed.

Chairman Tucker closed the public input portion of the public hearing for Resolution No. 4.

Mr. Horan said Florida just recently enacted a statute that allows a custodian to act with respect to real property in qualified stock bonus or pension or profit sharing plans without the joinder of the beneficiaries and without requiring a party that’s transacting the real estate purchase to go behind the trustee and inquire as to the beneficiaries’ powers, etc. He asked to the extent they have under this amendment and the ordinance that Mr. McMillan will be drafting, assuming this gets implemented, how would that work under this. Mr. McMillan stated he could not begin to address that question now. He explained in the amendment, he wasn’t sure what true ownership meant.

Mr. Horan gave a scenario for discussion. Mr. McMillan said he wouldn’t know how it would be implemented and it opens up a lot of issues. This is something lawyers would have a field day with, trying to challenge land use changes and find somebody who wasn’t disclosed, which have absolutely nothing to do with the goal, which is trying to find a conflict of interest.

There was no additional discussion by the CRC, therefore, Chairman Tucker closed the public hearing on Resolution No. 4.

RESOLUTION NO. 5

Chairman Tucker opened the public hearing for Resolution No. 5, proposing amendment of Article II of the Seminole County Home Rule Charter by adding new sections to provide: that the functions and duties now prescribed by the Florida Constitution to the Clerk of the Circuit Court which relate to Clerk’s duties as Auditor of County funds be transferred to a newly created auditor position serving at the pleasure of the Board of County Commissioners; for powers, duties and qualifications of said auditor; for the Clerk’s duties which relate to custodian of County funds to be transferred to the County Manager.

Ms. Yurko read the pertinent language as provided.

Mr. Webster read from Article VIII, Local Government, and said that makes it abundantly clear that even if the Clerk wanted to give up those duties, she would probably be charged with malfeasance. He suggested it is totally inappropriate to even attempt to take those powers away from constitutional officers. He suggested further that if they ever wanted to do that, how would they ever get that power. He gave the example of abolishing the Sheriff’s Office and making him a charter officer. He asked by what means would his constitutional and law enforcement authorities be transferred to a charter officer. He suggested that there is no way to do that.

No one else spoke in support or in opposition.

The Speaker Request Form was received and filed.

Chairman Tucker closed the public hearing input portion of the public hearing for Resolution No. 5.

Upon inquiry by Mr. Miller, Ms. Yurko stated the CRC is relying on the last phrase in Article VIII for this particular provision that says, “when not otherwise provided by county charter or special law approved by a vote of the electors, the Clerk of the Circuit Court shall be ex-officio clerk to the board of county commissioners, auditor, recorder and custodian of County funds.” She said there is also another provision that says you can abolish the Constitutional Officers and transfer all those duties, but the Clerk has a special section which she just read, that she thinks opens up the ability of the Charter to spell out siphoning off those duties to others. This has occurred in at least one other county and perhaps several others. She said this is one she has a comfort level with. She believes the Alachua County case (submitted to the record) is consistent with that interpretation. In that case, the Florida Supreme Court specifically uses the phrase that you can vary the duties of the Clerk, and that is exactly what the CRC is doing.

Ms. Yurko advised Mr. Lovestrand that she did not make any changes to the text on this point, but made a clarification in the intent section. She said she spoke to at least one Subcommittee member about the specific change and her advice was that she thought it was clear under the text. She put this in as the intent clause as an aid to anybody who might have confusion about what the intent was with the transfer of custodian. Further, she added that the intent language does not get pulled in to the body of the charter amendment.

There was no additional discussion by the CRC, therefore, Chairman Tucker closed the public hearing on Resolution No. 5.

RESOLUTION NO. 6

Chairman Tucker opened the public hearing for Resolution No. 6, proposing amendment of Article II of the Seminole County Home Rule Charter to provide for: adding a new section providing for a volunteer advisory audit committee; for setting forth the powers, duties, terms and qualifications of said audit committee; for conforming changes to Sections 2.2(3) and 3.1 of the Charter.

Ms. Yurko read the pertinent language as provided.

Mr. Webster said he was a little confused on this issue. He asked are they saying the Audit Committee would respond to the County Commission rather than to the County Manager. He said if they have one part of the Audit Committee under the executive power of the County, it would seem they would have the other part in the same organization.

Ms. Johnson advised she believes the intent is to have the Audit Committee as an oversight board that would make recommendations to the BCC in scope and in other merits in the audit function; it is not an independent board that would have specific authority over anything.

Mr. Webster said the County Commission is the legislative body and the County Manager is the executive body under this charter. He would think anything of that nature would be in his office.

No one else spoke in support or in opposition.

The Speaker Request Form was received and filed.

There was no additional discussion by the CRC, therefore, Chairman Tucker closed the public hearing on Resolution No. 6.

RESOLUTION NO. 7

Chairman Tucker opened the public hearing for Resolution No. 7, proposing amendment of Article V of the Seminole County Home Rule Charter to provide for: adding a new section which includes the Sheriff, Property Appraiser, Tax Collector, Clerk of the Circuit Court and Supervisor of Elections within the scope of internal audits conducted by the person designated by the Charter to perform audits; for internal audit if no such person is designated in the Charter to perform internal audits for conforming changes to Section 2.2(E) and 3.1 of the Charter.

Ms. Yurko read the pertinent language as provided.

Mr. Webster stated that somehow they don’t seem to gather the concept that the Constitutional Officers are not Charter officers; they’re not in the Charter and have never been in the Charter. He said the original Charter stated they would not be in it. If, in the event, the CRC wanted to take the Constitutional Officers and make them Charter officers, then where are they going to get the powers they had and who’s going to invest that power in them when it comes directly from the Constitution. That’s why they call them Constitutional Officers. He said the only Charter that attempted to do that was the one in Volusia County and they abolished all the Constitutional Officers except the Clerk of the Court.

No one else spoke in support or in opposition.

The Speaker Request Form was received and filed.

There was no additional discussion by the CRC, therefore, Chairman Tucker closed the public hearing on Resolution No. 7.

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Upon inquiry by Chairman Tucker, no new items were brought before the CRC by the public for consideration. Therefore, he closed the public hearings in general.

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Chairman Tucker recessed the meeting at 8:15 p.m. and reconvened it at 8:29 p.m. for discussion of the Ballot Questions.

QUESTION 1 BALLOT TITLE - Setting of County Commissioners’ Salaries by County Ordinance

Mr. Maloy suggested the Question 1 Ballot Title should say something along the lines of revising salaries because setting of County Commissioner’s salaries by County ordinance is the current system and it doesn’t imply what the CRC is doing. He thinks it is somewhat confusing. He said he e-mailed Ms. Yurko about that. He stated if it says revising salaries, it might be a little more accurate.

Ms. Yurko said she thinks that was an excellent suggestion to say revising of County Commissioners’ salaries instead of setting. Also, she said Mr. Maloy had said to add the phrase, “if any,” in line three of the ballot summary following the word “increases.” To meet the 75-word requirement, she can delete the word “the” before salaries in the first line.

Upon inquiry by Mr. van den Berg, Ms. Yurko said she could also change the Resolution No. 1 title to make it consistent with the ballot title.

Motion by Mr. Maloy, seconded by Mr. Horan, to approve Resolution No. 1, as advertised, with the ballot title to be changed to “Revising of County Commissioners’ Salaries by County Ordinance and the term “with increases, if any,” be put in place in the ballot summary; make appropriate changes to the Resolution title; and delete the word “the” from the first line of the ballot summary to meet the 75-word limitation.

Mr. van den Berg made the friendly amendment to the motion to delete the parentheses in the ballot summary; delete the word “approved”; and insert a comma after the word “increase” in the fifth line.

Whereupon, Ms. Yurko said she can put back in the summary the word “the” in the first line before the word “salaries.”

Mr. Maloy and Mr. Horan accepted the friendly amendment.

All members present voted AYE; whereupon, Resolution No. 1, Question 1 ballot title and summary, as amended, were approved.

QUESTION 2 BALLOT TITLE - Commissioner Lobbying, Tax Collector Bidding on Tax Certificate Sales and Campaign Employment by Official’s Employees

Mr. Maloy said he also forwarded an e-mail yesterday to Ms. Yurko on this. He said for Resolutions Nos. 2, 3, and 4, the term ethics has always been used. He thinks it is very important to put the term “ethics” of some sort in the ballot title and summary which is not in any of these now. He suggested the wording to say, ethical rules prohibiting or regulating ethical standards would make it much more clear what the intention is of these items.

Ms. Yurko stated she thinks that is an excellent suggestion.

Mr. Maloy suggested for the summary, first line, to read “require a county ethics ordinance. . .” He suggested the ballot title read “Ethics Ordinance regulating Commissioners lobbying, tax certificate sales and campaign employment by Official’s employees.”

Chairman Tucker stated in their discussions, they have always referred to it as that and he thinks not to put that in there would be a disservice to what they discussed and what the CRC’s intent was.

Motion by Mr. Maloy, seconded by Mr. Boyko, to approve Resolution No. 2, as advertised, with the revision of the ballot title to read “Ethics Ordinance regulating Commissioners lobbying, tax certificate sales and campaign employment by Official’s employees”; and give the Chairman latitude to tweak a word or two, if needed, and insert the word “ethics” in the first line of the ballot summary to read, “require a county ethics ordinance. . .”

Under inquiry by Mr. Miller, Ms. Yurko stated she has an increasing concern about the ability to bring the Constitutional Officers within this without abolishing their duties of office. They would be a case of first impression. She said she is not finding support for it and is becoming increasingly concerned about that. She said her recommendation would be to pull that out.

Mr. Horan said they already have Mr. Wolfinger’s letter indicating not to include him in this because he doesn’t believe he has authority to go ahead and be involved in prosecuting these things; and they have provisions in general law that may cover these things and may provide for criminal penalties; and have the County Attorney and a number of other people he has talked to who said when they pass this ordinance, they are not going to call for criminal penalties, so if you’re the State Attorney, why would you use this at all.

Mr. van den Berg said he is persuaded by his discussion with the County Attorney that they need to change the reference to criminal violation. He referred to the statute that specifically says a violation of a county ordinance is not a crime. He concedes that a county ordinance may include a fine or imprisonment, and that the State Attorney may have jurisdiction if imprisonment is provided for. He doesn’t see any reason not to take advantage with that input and say in all of the enforcement sections, “if the Board of County Commissioners deems violation of any of set provisions punishable by imprisonment, it will immediately, following enactment of the ordinance, enter into negotiations with the legally appropriate prosecuting authority.” Discussion ensued with Mr. Horan.

Ms. Dietz said she wanted to go back to what Mr. Miller brought up and the concerns Ms. Yurko has with knowingly putting this on the ballot and if it does go in, they are opening the County for litigation and having to spend a lot of money on that. She asked is that really the best thing for them to do when they don’t have concrete examples of problems in this area.

Mr. Lovestrand stated to say something should be done, it ought to be desirable and needed and it ought to be feasible. He said if the State Attorney doesn’t want to enforce it, he thinks that hurts the feasible part, and he has some problems with saying this is desirable. He explained he thinks they are limiting the County Commissioners’ freedom by stopping them from lobbying in the cities. He said he thinks the County has a right to go to the cities and say here is what we like and don’t like. That doesn’t mean the cities are going to do it. Secondly, he sees this whole thing as limiting freedoms. He doesn’t think this is really needed. He likes smaller government and less control. They already have the State Ethics Commission, the newspapers, and the gadflies to tell it to the newspapers, so he doesn’t think this is needed.

Mr. Maloy explained the language doesn’t say a commissioner can’t go to a city and speak on any issue that’s county-related. This has to do with a commissioner being a paid lobbyist for a project and coming to the city and lobbying for the development or project trying to get city approval.

Chairman Tucker said the CRC never discussed the County Commission and City Commission not being able to talk. This strictly has to do with a paid position on behalf of a private entity appearing before a jurisdiction within Seminole County.

Mr. Maloy added this is all about crossing that line when you’re fulfilling your public position serving the people to when are you using your position to advance your personal gain. He said the back-up provision is the one with the ethics board in case the prosecuting attorney doesn’t want to do it.

Discussion continued with Mr. van den Berg. He stated he can’t imagine they can’t successfully defend something which prohibits the complete conflict of interest which is to have someone in the Tax Collector’s Office do something which the Tax Collector says has never been done and that is bid on a tax certificate sale. He said he is sorry to disagree with counsel, but he supports the motion to approve this, subject to the revisions and enforcement provisions mentioned earlier.

Mr. Boyko asked Ms. Yurko if she is saying that because of this being on the ballot, there would be some problem with the legal status. He asked, is this because she did not get support by someone that did not support it; whose rattling the sword on this. Ms. Yurko stated she has provided an option for the CRC; it’s a redraft that keeps the resolution and takes out the reference to the Constitutional Officers. It keeps the lobbying provision in tact and it keeps the officials from working on campaigns in tact, except for its application to the Constitutional Officers. It would have to delete the reference to the Tax Collector because he is a constitutional officer. She explained the problem with this is it is dealing with home rule as it impacts constitutional officers who derive their authority by the Constitution. The Constitution is clear that they can abolish the constitutional offices and make them subject to the Charter and some jurisdictions have done that. It’s less clear whether they can take a little piece like ethics and make the constitutional officers subject to that. Her initial impression on that point was that the CRC could do that. As this process has progressed, she is becoming more concerned about it. She is hearing secondary threats that there could be litigation. She has reviewed the cases and talked to others, including people at her firm that do litigation, and they are not finding the kind of support they would like for that premise. She said her point is she considers her job to be an independent, objective bystander to give advice even when it may be raining on the CRC’s parade. At this point in the process, she does not have a comfort level with this particular point. She said if they do have to go to court, they won’t have a whole lot to stand on, but they will give it their best shot.

Mr. Horan stated they have to do things to make the structure of Seminole County government better because they are focusing on a governmental document that sets up a governmental structure. It seems to him that Resolutions Nos. 2, 3 and 4 “aren’t worth the candle.” It’s very difficult from a legal point of view to do exactly and precisely what they are trying to do. Even though difficult for Resolutions Nos. 5, 6 and 7, he thinks they “are worth the candle.” He thinks they improve the structure of the Charter. He said he would be voting against Resolutions 2, 3 and 4 because he doesn’t think they are substantial enough and he doesn’t think they are wise.

Mr. Maloy said he finds it hard to think that someone would sue the county over ethics provisions. He said this isn’t anything new and it happens all over. He said everybody he has talked to wants to support this type of concept. He stated he would support, as a friendly amendment, Mr. van den Berg’s revision to the enforcement section.

Mr. Miller said when a lawyer tells him there is going to be litigation, and Ms. Yurko’s comments sounds like a warning, he doesn’t think they should expose the County to something where they might lose the litigation. Some of the things in the Resolution are not really fixing things that he has evidence are broken. He said he spoke at length with Mr. Wayne Holmes of Mr. Wolfinger’s office and he learned that the State Attorney’s office negotiates a contract with the County and is a supplier to the County. So when it comes to enforcing anything, the BCC has tremendous influence with Mr. Wolfinger. He believes Mr. Wolfinger’s exception was when the CRC wrote their intent, they were saying he would enforce it and Mr. Wolfinger was not sure what the CRC was asking him to do was enforceable as criminal law and he was not contracted to do anything else. He said he is leaning away from Resolution No. 2 because of reasons discussed in the past.

Mr. van den Berg reiterated he doesn’t think they could lose a case where you say a tax collector could not bid on sales that he conducts. He said Ms. Yurko is not telling them that the constitutional officer issue goes to the restriction on a county commissioner. They have been told in these sessions that there is an example where a county commissioner, for money, has gone to a city official and attempted to do something that his principal wants done. He gave a scenario for an example and said he thinks such lobbying is unethical and improper and should be prohibited; and it’s in their power to do it. He agreed with Mr. Miller’s understanding of the position of the State Attorney. He said enforcement might not be a clear path to what they want, but there is some type of enforcement and, hopefully, it would involve the State Attorney at some point. Mr. van den Berg said he personally thinks public employees being involved in political campaigns while being paid creates a situation in which it is almost impossible to avoid violation of the State law having to do with political activity on company time. To him, this is a very small restriction on the freedoms of a salaried county employee.

Mr. Boyko said they have had these various public hearings. All during this time, they have discussed this issue before. He asked what happened between all this time and now that Ms. Yurko is bringing up the fact that they will have legal action on this particular issue. Ms. Yurko stated for one thing, they have not heard any support from any of the constitutional officers or, really, input. They have heard concerns from Mr. Valdes and have heard concerns second-hand from others that there could be litigation. She said all she can tell him is that gives her pause, as the CRC attorney, and it compels her to bring forward to them that she is not finding anything that is definitive in terms of the ability to do this in the absence of transferring the functions from the constitutional officers out of the Constitution and into the Charter, which they have not done. She said if the CRC wants to do some advisory resolution to the BCC or Legislative Delegation suggesting a revision to Chapter 112 to do this by general law. That would be an option to address the specific issue as it relates to constitutional officers or if they want to include in the resolution a request that a committee be put together to examine what the implications might be of transferring out the duties of the constitutional officers and putting them under the Charter, that could be done. She said to the extent that this is appearing to be coming up at the eleventh hour, all she can tell them is that this is a process. It is something that has evolved and unfolded and, at this point in the process, she does not have a comfort level with this.

Mr. Boyko said his feeling is that adding a rule is to prevent something from happening.

Ms. Hammontree said she has to side with some of the others on when they get down to the individual employees and telling them what they can and cannot do off the job, which is infringing on their personal liberties and rights. For anyone caught doing something on the job, that is something for the employer to take care of. The CRC was looking at the elected officials and she think it was their intent to keep the elected officials in check. If they really want to say they want the commissioners to live above board and ethical, they might need to be more specific and say that.

Chairman Tucker said he doesn’t think they’re looking to necessarily control their commissioners or constitutional officers, but they are here to have a better government. He thinks they’re in the situation of people speaking to those who want to hear that there are ethical issues, real or perceived. He thinks in most of these cases, they are real. The abuse of the senior employees in some of the constitutional offices is very real. He thinks it is much more an abuse to the system and government than it is an infringement over the personal rights of the individuals, this is what he is hearing from people.

Chairman Tucker said he doesn’t appreciate legal advice that is at the eleventh hour. He said he thinks they should put this on the ballot and let the people speak to it. If they vote it down, so be it. Discussion continued.

Mr. McMullen stated he went on the street with every amendment and talked to 12 people from the City of Casselberry and ten of them said #2 was the most important. He stated that three or four months ago a Seminole County Commissioner lobbied hard the members of the Casselberry Board of Adjustment on an issue.

Ms. Johnson said she shares Ms. Hammontree’s concern over some of the practical applications of who this might affect. She discussed an example of a paralegal taking leave of absence to work on a campaign and said she is not sure it would be to anybody’s great detriment to have this amendment passed.

Mr. Miller discussed with Ms. Yurko if she thought this Resolution was reasonably defensible.

Mr. Triplett stated he would feel much better about the CRC going to the BCC and telling them that ethics is on the community’s mind and saying they need to create a commission on ethics to put together what needs to be done. He thinks this is a shotgun effect of a couple of things that are close to some people’s heart that doesn’t get at the heart of the true meaning of ethics. He doesn’t think the resolution holds any teeth whatsoever. He further stated that Ms. Yurko would be remiss, at whatever hour it is, to not give them her opinion as to what she has found.

Chairman Tucker advised it is not the charge of the CRC to go to the BCC and make suggestions on what to do. He said the Board of County Commissioners has the ability to make their own changes. He said this Commission that is not elected is the best format to go through and do some of these ethics items.

Mr. van den Berg called the question.

Vote on the motion was taken with Mr. McMullen, Ms. Johnson, Mr. van den Berg, Mr. Tucker, Mr. Boyko, Mr. Maloy, and Ms. Ohab voting AYE.

Mr. Horan, Ms. Dietz, Mr. Miller, Mr. Lovestrand, Ms. Hammontree, and Mr. Triplett voted NAY; whereupon, the motion failed for the lack of a majority vote of the entire CRC.

Motion by Mr. Maloy, seconded by Mr. van den Berg, to make the same motion, changing the language with Mr. van den Berg’s revision to enforcement, but strike item (3), Certain officials and their employees from accepting compensation for working in others’ election campaigns; and any corresponding references to that in the ballot language summary or ordinance.

The vote on the motion was taken with Mr. McMullen, Ms. Johnson, Mr. van den Berg, Mr. Tucker, Mr. Boyko, Mr. Maloy, Ms. Hammontree, and Ms. Ohab voting AYE.

Mr. Horan, Ms. Dietz, Mr. Miller, Mr. Lovestrand and Mr. Triplett voted NAY. Whereupon, Resolution No. 2, Question 2 ballot title and summary were approved, as amended.

Chairman Tucker recessed the meeting at 9:37 p.m. and reconvened it at 9:44 p.m., with Mr. Triplett entering late.

QUESTION 3 BALLOT TITLE - Prohibitions on gifts to Officials in Certain Circumstances and Officials Influencing Matters for Private Gain

Mr. Maloy said in reference to the last amendment and looking at the ballot title, he would have the same suggestion that the ethics rules be in the title and in the summary, first sentence, amend the wording to read a county “ethics” ordinance; and amend the ballot title to read “Ethics rules regarding gifts to elected Officials . . .”

Mr. Triplett re-entered the meeting at this time.

Motion by Mr. Maloy, seconded by Mr. McMullen, to approve Resolution No. 3 with amendments to the ballot title and summary, as presented.

Under discussion, Mr. Lovestrand stated Mr. Maloy’s title only addresses part one in the Resolution and not part two.

Ms. Johnson suggested saying establishing a Seminole County code of conduct.

Mr. Maloy said he would support that. He said he still thinks the title should include ethics in it.

Ms. Yurko suggested the wording, “Ethics rules relating to gifts to Officials in certain circumstances, and influencing Officials.”

Mr. Maloy accepted the language by Ms. Yurko.

Upon inquiry by Ms. Dietz, Ms. Yurko said she has the same concern with this resolution as with Resolution No. 2. She said she also handed out language (received and filed) that would eliminate the reference to the Constitutional Officers. It is a minor change, changing the definition of Officials to only mean the County Commissioners.

Mr. Lovestrand stated he will vote against this resolution because both these provisions are already against the law. Discussion ensued.

Chairman Tucker said he doesn’t know that redundancy is necessarily a problem. He asked why can’t they reestablish something.

Mr. Maloy stated this would give the County the ability to further regulate gifts.

Ms. Yurko stated this goes to the issue of the BCC now bringing the Constitutional Officers under their purview with respect to regulating gifts and how that is done. That is separate and independent of anything they have ever seen before and the authority in any other charter that she is aware of, without having to abolish the offices of the Constitutional Officers.

Chairman Tucker said he didn’t think they’re asking the BCC to do this, but they are asking the people to vote on it and do it. That’s a very definite distinction that some of the lawyers seem to be overlooking.

Mr. Horan stated he thinks it’s important that they not put something before the people that is not lawful.

The vote on the motion was taken with Mr. McMullen, Mr. Miller, Mr. van den Berg, Mr. Tucker, Mr. Boyko, Mr. Maloy and Ms. Ohab voting AYE.

Mr. Horan, Ms. Dietz, Ms. Johnson, Mr. Lovestrand, Ms. Hammontree and Mr. Triplett voted NAY; whereupon, the motion failed for the lack of a majority vote of the entire CRC.

Motion by Mr. Maloy, seconded by Mr. McMullen, to accept the wording submitted by Ms. Yurko for Resolution No. 3 with revisions to the language in the title and summary as amended by him earlier.

Under discussion, Mr. Horan said he understands that Resolution No. 2 would apply to the Constitutional Officers, but not Resolution No. 3.

Ms. Yurko said that would be a strange situation.

Mr. van den Berg made a friendly amendment to change the wording under Section 1.4 C. to read “special private gain” instead of “benefit”; change the wording under D., Enforcement, to read “In addition to other enforcement measures available by general law, the Ordinance may include provisions establishing the board to hear and determine charges, and prescribe penalties within the limits allowed by law. If the Ordinance provides, penalties for violations may include imprisonment. The Board of County Commissioners shall, immediately following adoption of the Ordinance, enter into negotiations to compensate the appropriate prosecuting authority for costs to be associated with prosecution of any such provisions upon terms acceptable to such prosecuting authority. The Board of County Commissioners shall also fund any necessary investigation costs and other enforcement costs associated with the Ordinance.”

Mr. Maloy accepted the friendly amendment. He said his motion referenced the previous language that Mr. van den Berg modified which should be the same.

Mr. McMullen also accepted the friendly amendment.

Mr. Lovestrand reiterated that this is already against the law.

Mr. Maloy told of lobbying taking place when the garbage contracts were before the BCC. He thinks if they have this ordinance in place, it would clearly point that out as unacceptable behavior. He said he thinks everybody agrees that the State Commission on Ethics doesn’t do much at all.

Mr. van den Berg said the point is there are violations which are taking place which are not being enforced at the State level.

Mr. Horan stated he is thoroughly convinced that it is not the CRC’s job to solve the problem of the State Ethics Commission through restructuring the Seminole County frame work of government. He thinks that’s where he has a problem with this.

The vote on the motion was taken with Mr. McMullen, Mr. Miller, Mr. van den Berg, Mr. Tucker, Mr. Boyko, Mr. Maloy and Ms. Ohab voting AYE.

Mr. Horan, Ms. Dietz, Ms. Johnson, Mr. Lovestrand, Ms. Hammontree and Mr. Triplett voted NAY; whereupon the motion failed due to the lack of a majority vote of the entire CRC.

QUESTION 4 BALLOT TITLE - Requiring Disclosure of Ownership Interests for County Land Use Applications

Mr. Maloy suggested similar changes to amend the title to read “Ethics Ordinance requiring disclosure . . .”; and also insert in the first line of the ballot summary to read a county “ethics” ordinance . . .”

Motion by Mr. Maloy, seconded by Mr. Boyko, to approve Resolution No. 4 with amendment to the ballot title and summary as stated by Mr. Maloy; and revision to the enforcement section as previously stated by Mr. van den Berg.

Mr. van den berg amended the language in the Resolution under Section 1.5 A., sixth line, to read “application as an owner.” He further amended the last line of the same section to read “shall be rescinded if such violation is asserted within the time allowed of appeal of the ordinance.

Mr. Maloy and Mr. Boyko accepted this friendly amendment.

Ms. Dietz asked what is the point of this resolution. She said she is confused. Discussion ensued.

Mr. Lovestrand stated if it doesn’t matter who the owner is, why are they worrying about disclosing who owns the property. Discussion ensued.

Mr. Tucker explained this does not address the zoning issue itself but addresses the ownership to determine whether or not there is deceptiveness in the ownership. He advised Mr. Miller they are not addressing why the zoning is being changed, but who owns the property as far as the ethics of it. This is a criterion as to whether or not a commissioner should be influencing the decision one way or another.

Upon inquiry by Mr. Miller, Mr. Tucker and Mr. van den Berg affirmed that it is not the obligation of the County to verify the owners and this does not create any additional work for anybody other than the owner who is presenting who he is.

Mr. van den Berg stated this is to avoid the appearance that someone got a sweetheart deal, in spite of the merits, because someone who may have been in the chain of the process was involved.

Mr. Horan said this might be a good idea, but he is not sure it belongs in the charter. He just doesn’t think it’s important enough to put in the charter.

Mr. Triplett said with this resolution, they are relying on public opinion just based upon ownership. He asked if there is any teeth in this or is it just so the public knows there may be an error of indiscretions.

Chairman Tucker stated you’ve got people voting on something or not, based on what they know to be the truth.

Mr. Horan said he thinks one of the dangers of engrafting something like this into a charter amendment is that you only get to change it every six years. The concern he has with something like this is if you put it into the charter and graft it into a constitution of the government, it makes it more difficult for the County Attorney and the Commissioners to deal with it and change it as working with it shows it should be changed. He thinks this might be better as an ordinance or possibly a rule of procedure for the Building/Zoning/Land Use Departments. Discussion continued.

The vote on the motion was taken with Mr. McMullen, Mr. Miller, Ms. Johnson, Mr. van den Berg, Mr. Tucker, Mr. Boyko, Mr. Maloy and Ms. Ohab voting AYE.

Mr. Horan, Ms. Dietz, Mr. Lovestrand, Ms. Hammontree and Mr. Triplett voted NAY. Whereupon, Resolution No. 4, Question 4 ballot title and summary were approved, as amended.

QUESTION 5 BALLOT TITLE - Transfer of Clerk’s Function as Auditor and Custodian of County Funds

Motion by Mr. Horan, seconded by Mr. McMullen, to adopt the ballot title, ballot summary language, and Resolution No. 5, as presented.

The vote on the motion was taken with Mr. Horan, Mr. McMullen, Ms. Dietz, Mr. Miller, Ms. Johnson, Mr. Lovestrand, Mr. van den Berg, Mr. Tucker, Mr. Boyko, Ms. Hammontree, Ms. Ohab and Mr. Triplett voting AYE.

Mr. Maloy voted NAY. Whereupon, Resolution No. 5, Question 5 ballot title and summary were approved.

QUESTION 6 BALLOT TITLE - Creation of a Volunteer Advisory Audit Committee

Motion by Mr. Horan, seconded by Ms. Johnson, to approve Question 6 ballot title, ballot summary language and Resolution No. 6, as presented.

All members present voted AYE. Whereupon, Resolution No. 6, Question 6 ballot title and summary were approved.

QUESTION 7 BALLOT TITLE - Constitutional Officers Subject to Internal Audit for Certain County Funds

Motion by Mr. Horan, seconded by Mr. McMullen, to adopt the Question 7 ballot title, ballot summary language and Resolution No. 7, as presented.

Under discussion, Ms. Dietz stated the more she thinks about this, she thinks this item should be tied back together with Resolution No. 5. She said if Resolution No. 5 doesn’t pass, then the Clerk is going to have a lot more power than they intend. She thinks these two should be tied back together so that if they get the auditor, the auditor would get to do these audits as opposed to if they don’t get the auditor, but they still might get internal audits done.

Ms. Johnson said she did some additional research on the audits of the Constitutional Officers. She referred to the provision in Section 1.5 of the resolution where they have “any other receipts of funds by Constitutional Officers not subject to separate audit.” She said that basically, the Constitutional Officers are subject to separate audit and those are contained within the CAFR, so she believes that most of that provision is probably not going to hold much water. She said her image of the first part of this is that if the County provides funds to a Constitutional Officer for a specific purpose, they have a right to go in and audit a review of those funds, which they could proscribe any time they provide those funds. She said they can do that individually; it’s like a contract rider. She is not sure, retrospectively, that a contract rider is appropriately placed in the charter. Secondly, the Constitutional Officers are already subject to separate audits. Looking back, she is not sure this is worthy of a charter amendment.

Upon inquiry by Mr. van den Berg, Ms. Johnson stated she doesn’t see why the CRC could not suggest to the County to require the right of audit of funds to the Constitutional Officers, but she is not sure it is necessary at this point. She is not sure the CRC would be fixing anything, and she is not sure that anyone has ever said there is a problem with any funds given to a Constitutional Officer, that they are not either using them appropriately or that they don’t have a right to look at it. She thinks the BCC has every ability to add that to any funds they appropriate. She is not sure this has to be part of the charter as the BCC has the ability to do that at any given point in time. It would be automatic if it were a part of the charter. She is not saying that is a terrible thing. She further stated she needed to tell the CRC that she did look at this and that would take the Constitutional Officers out of the review and that was part of the original concern. Discussion ensued.

Upon comment by Mr. Maloy, Ms. Johnson said she is not sure they have the right to require operational audits on funds the County does not provide to the Constitutional Officers.

Upon comment by Chairman Tucker, Ms. Johnson said she doesn’t know if the CRC has the right to talk about State revenues and those kinds of things. Chairman Tucker said he thinks they addressed that under other audits and where it is State funds, they are audited. He thinks the people of Seminole County should have the right to say they want those funds audited and this amendment is what the CRC is allowing them to do, to vote it up or down.

Chairman Tucker advised Ms. Dietz that the CRC discussed combining the two amendments (#5 and #7) and decided this was the way to do it.

Mr. van den Berg said he also thinks there was concern about having everything being stand alone and self-sufficient. He believes that was why they have the three amendments.

Mr. Horan stated, for the Record, that the CRC did not receive any particular input from the Constitutional Officers. It was noted that several Constitutional Officers were in attendance--the Tax Collector, Supervisor of Elections, Clerk of Circuit Court and her representative, and Property Appraiser.

Mr. Maloy advised he didn’t think they could combine Resolutions No. 5 and No. 7 at this late hour, based upon how they were advertised.

The consensus was not to combine #5 and #7.

The vote on the motion was taken with Mr. Horan, Mr. McMullen, Mr. Miller, Ms. Johnson, Mr. Lovestrand, Mr. van den Berg, Mr. Tucker, Mr. Boyko, Mr. Maloy, Ms. Hammontree, and Ms. Ohab voting AYE.

Ms. Dietz and Mr. Triplett voted NAY. Whereupon, Question 7 ballot title, ballot summary language and Resolution No. 7 were approved.

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Mr. van den Berg returned to the ballot summaries for Questions 5, 6 and 7 and discussed some minor changes. He asked if the word “constitutional” is necessary in the second line of Question 5 Ballot Summary. He said this could be confusing. He recommended deleting the word “constitutional” in the second line and in the sixth line and insert the word “current” before functions in the sixth line. Also, he asked that the wording “county manager” in the seventh line be capitalized.

Motion by Mr. van den Berg, seconded by Ms. Johnson, to approve the changes as recommended by Mr. van den Berg to Question 5 Ballot Summary.

All members present voted AYE.

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Upon inquiry by Chairman Tucker, Ms. Yurko advised the resolutions are to be presented to the County Commission, but this would be the CRC’s last meeting. She said the CRC is still bound by the sunshine law until the Commission is dissolved. She read that the CRC is dissolved after the election.

Mr. McMillan added that the CRC is prevented from discussing anything that would come before them for a vote.

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There being no further business to come before the CRC at this time, the Chairman adjourned the meeting at 10:49 p.m.