Charter Review Committee Meeting Minutes

1. Consideration of Approval of the Minutes of the September 23, 2019 Charter Review Committee Meeting

Chairperson Nyce asked for a motion to approve the minutes of the previous meeting.

Member McGee made a motion to approve the minutes of the September 23, 2019 Charter Review Committee meeting as presented. Member Barker seconded the motion. The motion passed by a vote of 7 to 0.

2. Review of Comments as a Result of Meetings with the Town Manager and Commissioners

Chairperson Nyce explained that he met with the Town Manager and Commissioner Hannan, and attended the October 21, 2019 Commission meeting as well. Commissioner Kussard also provided written comments in regard to the Charter review and this was emailed to the Committee members. He asked the members if they had any comments regarding the information provided at the meetings and the written comments by Commissioner Kussard.

Member McGee stated he reviewed the information provided and the minutes. He agreed that the order of sections of the Charter could be improved. He stated it appears that a review of the Charter has been mentioned many times over the years and Commissioners’ terms was a key item. He stated the Commissioners are running unopposed most of the time and there is not much effort needed to run for another term.

Chairperson Nyce noted that Commissioners’ terms is discussion item #3 on his summary of meetings and is a separate agenda item for this meeting. He stated that he believes the Town’s shorter term lengths gives the voters an opportunity to make a change in the Commission since there are no term limits.

Member Barker stated he would like the Commissioners’ terms to remain at two years with no term limit. He stated he would like to see the Charter include a mandatory Charter review every four years.

Member Davis pointed out her research shows that there was only four times out of 29 occurrences that Commissioners were opposed. She agreed that term limits should remain at two years.

Member McGee stated he does not see a need to extend the terms.

Member Choquette stated she was not in favor of changing term limits either.

Chairperson Nyce stated  it appears the recommendation is to retain term limits at two years.

Commissioner Hannan commented that the cost of holding elections every two years should be taken into consideration.

Member Barker made a motion to make a recommendation to the Town Commission that the Commissioners’ terms remain at two years with no consideration to change the language in the Charter to restrict the number of terms. Member McGee seconded the motion. The motion passed by a vote of 7 to 0.

Chairperson Nyce stated the first item on his memo was regarding the order of the sections of the Charter. He stated it is strictly an administrative issue and he asked for comments and the Town Attorney’s advice whether it makes sense to make that change.

Town Attorney Derek Schroth replied that if this is the only change recommended, there would be considerable expense in drafting a measure for a referendum for the ballot. His opinion is that it would not merit the time and cost involved.

Chairperson Nyce recommended that this issue be tabled unless there were any other changes recommended by the Committee. He stated that item #2 on his list was just a sharing of information regarding mention of Charter review in past minutes.

Chairperson Nyce stated item #4 was brought up by Commissioner Holden regarding the possibility of an appeals process being established for employees such as the Disciplinary Arbitration Panel for police officers. He asked the Town Attorney for his opinion on whether this is a Charter issue.

Mr. Schroth advised that this may be a Charter issue in that the Charter gives the Town Manager the exclusive authority over general employees. If an appeals process was established taking away the Town Manager’s authority, the Charter would have to be amended. Mr. Schroth stated that the Town Manager’s contract provides that if any powers are removed, it could trigger a breach of contract.

Chairperson Nyce asked the Town Manager to explain the process for general employees.

Town Manager Kris Kollgaard explained the process for disciplining general employees starts with the department head taking the issue to Human Resources (HR). Employees are given disciplinary warnings by being written up. If the issue is not resolved, the department head will contact HR to recommend termination. HR will then have the Town’s labor attorney review the case to make sure all labor laws are being considered.

Chairperson Nyce asked Commissioner Holden whether there has been a problem in the past that caused this issue to be brought up.

Commissioner Holden stated his concern is that the employee’s final opportunity to appeal a termination would be to go to court, which would be an expense that most employees could not afford if they had no appeals process such as the Disciplinary Arbitration Panel for the police officers.

Ms. Kollgaard stated an employee could also appeal to the Employee Equal Opportunity Commission (EEOC).

Mr. Schroth stated there is a state agency as well as a federal agency that mainly looks at wage and discrimination claims.

Member McGee stated it appears the Town’s process is the same as it is in most companies with dismissal for cause, even his company. He asked if the question is whether to allow a general employee to go into arbitration.

Commissioner Holden stated it is his opinion that employees should have the right to arbitration.

Member McGlone asked whether an employee can appeal the issue with someone before the termination is decided.

Chairperson Nyce stated he assumes that there is a Town policy and procedure manual that outlines the process for termination.

Ms. Kollgaard confirmed this; stating the process is the department head goes to HR, HR takes it to the labor attorney, then the write up is done. She stated she does not have to be involved in a termination, as it goes through HR, although the employee can appeal a termination to her as the Town Manager.

Chairperson Nyce asked the Town Attorney’s opinion, as well as the members’, whether this issue should be part of the Charter rather than something the Commissioners deal with regarding policy. He asked if there were any instances where employees were disciplined or dismissed without regard to their rights.

Mr. Schroth stated there were several employee lawsuits over the past ten years.

Ms. Kollgaard agreed that there were several, and in each case, the Town was upheld.

Mr. Schroth stated that if the Charter was changed by referendum to eliminate the Town Manager’s right to discipline department heads and other employees , it would be a breach of her current contract.

Chairperson Nyce confirmed with the Town Attorney that a general employee does not currently have a right to appeal a termination to another agency or entity within the Town before they were dismissed.

Mr. Schroth stated he is not aware of any other Florida municipality that has this in their charter. He stated he believed the issue of the Town Manager’s power to terminate, department heads in particular, was brought up after the former police chief resigned. He stated he believed at least two Commissioners were not pleased with that situation.

Member Davis stated it appears that employees have several opportunities to change the outcome before they are let go after they are given warnings and are written up, and it does not need to be made part of the Charter.

Chairperson Nyce asked if the members wanted to make a recommendation to the Town Commission to add an appeal process for general employees to the Charter.

After further discussion, the majority of the Committee (Member Choquette, Member Davis, Member Barker, Member McGee and Member Nyce) were not in favor of this, stating the policy currently in place seems more than fair. Member Olivier-White thought there should be another option for employees. Member McGlone was on the fence about it.

Member Davis made a motion that the Committee not make a recommendation to the Town Commission to include an appeal process for general employees of the Town. Member Barker seconded the motion. The motion passed by a vote of 5 to 2 (Olivier-White and McGlone).

Chairperson Nyce asked the members for their comments on an employee holding two positions simultaneously, which was item #5 on his list.

Ms. Kollgaard explained that this would normally occur when a Town Manager is let go and a Clerk takes over as interim, and this may cause problems down the line if it was put in the Charter. She stated she feels this should be left up to the Commission. She explained that when she is on leave, she appoints someone to act in her absence; currently the Growth Management Director. A change to the Charter to preclude an employee from holding two positions would make doing this against the rules.

Mr. Schroth agreed with Ms. Kollgaard’s statements. He stated that each municipality has their own way to handle someone filling in as interim manager with perhaps a different line of succession, although a Charter provision prohibiting two roles assumed by one person would create an issue in that instance.

Member McGee stated he does not see why this Committee would need to address this unless there has been an issue with the someone holding two positions.

Member McGlone asked if someone holding two positions keeps other capable employees from being promoted and filling a position from within.

Ms. Kollgaard stated she does not believe this has been an issue during the past ten years that she has been holding dual positions.

Commissioner Hannan stated this is the first time he has heard it brought up and it is a non-issue. Commissioner Holden agreed there has been no problem with the Town Manager holding two positions.

3. Consideration of the Order of the Sections of the Charter to Establish the Fact that the Commissioners’ and Mayor’s positions were Established Before the Town Manager

This item was discussed under agenda item #2.

4. Consideration of the Length of Commissioners’ Terms and Whether There Should be Term Limits

This item was discussed and voted on under agenda item #2.

5. Consideration of Whether or Not a Periodic Review of the Charter Should be Included in the Charter

Chairperson Nyce stated he feels that language regarding a periodic review of the Charter should be introduced. He asked the Town Attorney whether the state could mandate changes that would require the Charter to be changed. He also asked Mr. Schroth for his opinion on whether periodic review of the Charter should be included in its language.

Mr. Schroth replied that if there was a legislative mandate, a referendum would go before the voters to address it. He stated there was such a situation three years ago in the City of Eustis in regard to residency requirements for candidates running for office. Mr. Schroth stated he feels the Commission could take care of this by resolution or ordinance to say there shall be a review of the Charter every so often, rather than as an element of the Charter.

After further discussion, the Committee members agreed they would not make a recommendation on a periodic review of the Charter.