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HomeMy WebLinkAboutIII (D) Reappointments to Board of Adjustment Agenda 5-6-97 Ocoee City of Ocoee Item III D r-C.1 0 150 N. Lakeshore Drive Jean Grafton -� Ocoee, Florida 34761-2258 City Clerk orcoao`$ (407) 656-2322 FAX (407) 656-5725 MEMORANDUM To: The Honorable Mayor and City Commissioners From: Jean Grafton, City Clerk Date: May 1, 1997 Re: Appointments to Boards Board of Adjustment (3 year terms) The terms of Mr. Bruce Beatty and Mr. Bob Colburn will expire May, 1997. They have served since May, 1981 and June, 1985 respectively. Both are willing to serve new terms should you wish to reappoint them. Additionally, there are vacancies for an active member and an alternate member on the Board of Adjustment. Mrs. Genevieve Foster resigned in a letter dated June 4, 1996. (See attached) Her term would have expired May, 1998. The alternate position for a term to expire May, 1999 was vacated when Mr. Birnstihl was appointed as active member in April, 1996. The Board of Adjustment has not met in several years and citizens seem reluctant to apply for it. Mr. Robert Godek was willing to be appointed as alternate member last year only if he could be considered for another board. He was subsequently appointed to the Code Enforcement Board as alternate member and then, last month, as active member. The risks of dual office-holding were stressed in a class at the Florida Association of City Clerks' conference in April, and the two-page handout on the topic received at the conference is attached. We await direction from Commission before contacting Mr. Godek about his willingness to serve as active member on the Board of Adjustment. Attached for your information along with Mrs. Foster's letter and the handout are a current member listing for the Board and a brief description of City boards. We have no applications on file from citizens willing to serve on the Board of Adjustment who have not been previously appointed to other hoards. mg "PRIDE OF WEST ORANGE" A t (DtN J „ram.,_- / 9 9- RECEIVED JuN ', �11�9c BY: C. auk) 1 r Q6- OIre N' Dual Office-Holdino Generally speaking, there are two rules governing dual officeholding: the dual officeholding prohibition as contained in the Constitution; and the common law rule which prohibits an officer from holding two incompatible offices at the same time. Since these are two separate and distinct rules, even if an "officer" does not violate the constitutional provision, the "officer" may still violate the common law rule, or vice versa. Below is a brief summary of these rules and examples of each. Article II, Section 5(a), Florida Constitution, provides in part: No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, taxation and budget reform commission, constitutional convention, or statutory body having only advisory powers. This constitutional provision prohibits a person from simultaneously holding more than one "office" under the government of the state, counties and municipali- ties. path Club. Inc. v. Dade County, 394 So. 2d 110, 112 (Fla. 1981). This prohibition applies to both elected and appointed officials (See, AGO-80-97) and does not require that both offices be within the same governmental unit. See, AGO- 84-90 (mayor of a municipality prohibited from serving as a member of the Volusia County Health Facilities Authority). Although the constitution does not define the term "office" for the purpose of the dual officeholding prohibition, the Florida Supreme Court has given the following guidance in differentiating between "of- fice"and "employment": The term "office' implies a delegation of a portion of the sovereign power and the possession of it by, the person filling the office, while an "employment" does not compre- hend a delegation of any part of the sovereign authority. The term "office" embraces the idea of tenure, duration, and duties in exercising some portion of the sovereign power, conferred or defined by law and not by contract. An employment does not authorize the exercise in one's own right of any sovereign power or any prescribed inde- pendent authority of a governmental nature; and this con- stitutes, perhaps, the most decisive difference between an employment and an office. . . Holloway v. Sheets, 83 So. 508, 509 (Fla. 1919). The nature of the powers and duties of a particular position determine if it is an "office" or "employment." For example, when a board or authority has been created to exercise a portion of the sovereign power of a municipality or county, the officers of the board or authority are generally "officers" for purposes of Article II, Section 5. Examples of "officers" on various boards include: (1) Member of Architectural Review Board (AGO-80-97); (2) Member of Code Enforcement Board (AGO-81-61); (3) Member of Municipal Board of Adjustment (AGO-84-25); and (4) Member of Municipal Building Board of Appeals (AGO-88.105). Other examples of "officers" include the mayor and the city manager. See, AGO-84-90 and AGO-80-97, respectively. The prohibition against dual officeholding does not apply to persons in positions who merely exercise certain powers as the agents of government officers rather than having official powers in their own right. ate, AGO-88-56 (deputy clerk was found to perform mostly ministerial duties of an assistant to the clerk of the circuit court rather than the duties of a true deputy which led to a conclusion of employment). Examples of "employment" include an assistant state attorney and a deputy tax assessor. lea, AGO-71-263 and AGO-74-75, respectively. The dual officeholding prohibition contained in Article II, Section 5(a) does not apply where additional or "ex officio" duties are imposed on or assigned to a particular office or officer by the legislative body of a municipality .logi there is no conflict between the new and pre-existing duties. These new duties are viewed as an addition to the existing duties of the officer. Path Clup, 394 So. 2d at 112; and State v. Florida State Turnpike Authority, 80 So. 2d 337 (Fla. 1955). Even if the constitutional dual officeholding prohibition is not applicable to a particular situation, there is a common law rule which prohibits an officer from holding two incompatible offices at the same time. The underlying rationale for this common law rule is to assure not only the actuality of undivided loyalty, but also the appear- ance of undivided loyalty. Grvzik v. State 380 So. 2d 1102 (Fla. 1st DCA 1980), and leg, AGO-88-56. Incompatability is said to exist where ... in the established governmental scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation to another. ... If the duties of the two offices are such that when placed in one person they might disserve the public interests, or if the respective offices might or will conflict even on rare occasions, it is sufficient to declare them legally incompatible. Imo. at 1104. In interpreting this rule, the Attorney General's Office has stated that a conflict exists where one office is subordinate to another and subject in some degree to the supervisory power of its incumbents or where the incumbent of one has the power to appoint or remove or set the salary of the other. See AGO-70-46. 19. Ex Parte Communications, In 1991 , the Florida Third District Court of Appeal ruled on a case involving gx parte (private; one-on-one) communication. In this case involving Dade County, the communication was between a county commissioner and one of the parties to a quasi-judicial proceeding pending before the county commission. The Court held that such ex Darte communication gives rise to a presumption that such contact was prejudicial to the "other side" and could lead to an invalidation of the ultimate county commission action/decision. (See Jennings v. Dade Countvl The Florida Supreme Court refused to review this decision; therefore, the Jennings decision is the law of the State of Florida. Later in 1991, the Florida Fifth District Court of Appeal held in a case involving BOARD OF ADJUSTMENT Member District Phone Number Term Expires Bruce Beatty (Chmn) 4 656-8019 (H) May 1997 1327 Olympia Park Circle 828-4027 (W) Ocoee, FL 34761 Daniel J. Birnstihl 4 298-8994 (H) May 1999 863 Hammocks Drive 877-3440 (W) Ocoee, FL 34761 Bob Colburn (VChmn) 4 292-5696 (H) May 1997 704 Stinnett Drive 824-5542 (W) Ocoee, FL 34761 May 1998 John W. Resnik, Jr. 4 298-2928 (H) May 1999 407 Abby Ridge Ct. 299-7180 (W) Ocoee, FL 34761 ext. 212 Alternates Robert H. Godek 4 877-0973 (H) May 1998 1316 Olympia Park Cir. 351-3400 (W) Ocoee, FL 34761 May 1999 BDADJUS'r/nbglJuly 22, 19% BRIEF DESCRIPTION OF CITY BOARDS BOARD OF ADJUSTMENT Meets as needed 5 members, 2 alternates - 3 year terms Duties: To hear and decide appeals for administrative review; to hear and recommend to City Commission special exceptions and variances to the zoning ordinance. CITIZEN ADVISORY COUNCIL FOR POLICE DEPARTMENT Meets 3rd Thursdays, alternate months, 7:00 p.m. No less than 15 members, no more than 25 members - 3 year terms Duties: To promote and maintain communication, cooperation and a positive relationship between the citizens of the City of Ocoee and the Ocoee Police Department. CODE ENFORCEMENT BOARD Meets 4th Tuesdays, 7:30 p.m. 7 members, 2 alternates - 3 year terms (Membership will, when practicable, include an architect, a businessman, an engineer, a general contractor, a sub-contractor and a realtor) . Duties: To review infractions of City technical codes, negotiate compliance and impose fines for failure to comply. PERSONNEL BOARD Meets as needed 5 members - 3 year terms (Membership will include at least 1 City employee, 1 City Commissioner, 1 person who holds management position with City, and 1 citizen of Ocoee who is not employed by and does not hold office with City. All must be qualified electors of the City. ) Duties: Responsible for developing personnel policies for the City and recommending such policies to City Commission for adoption. PLANNING AND ZONING COMMISSION Meets 2nd Tuesdays, 7:30 p.m. (and 4th Wednesdays, if needed) 7 members, 2 alternates - 3 year terms (Membership will, when reasonable, include an architect, an engineer, a general building contractor, a real estate agent and lay persons) . Duties: Establishes principles and policies for guiding action affecting development in the City and its environs. Determines whether special proposed developments conform to the principles and requirements of the comprehensive plan. Acts in advisory capacity to the City Commission. RECREATION ADVISORY BOARD Meets 3rd Mondays, alternate months, 7:30 p.m. 7 members - 2 year terms Duties: To advise the Mayor, Board of City Commissioners, City Manager and Recreation Director on the operation of the City's parks, recreational facilities and programs. GENERAL EMPLOYEES' RETIREMENT TRUST FUND BOARD OF TRUSTEES 5 members: 2 employees, 2 residents and 5th member chosen by majority of the previous 4 members. 2 year terms Duties: General administration and responsibility for the operation of the Retirement Trust Fund for general employees. POLICE OFFICERS' AND FIREFIGHTERS' RETIREMENT TRUST FUND BOARD OF TRUSTEES 5 members: 1 police officer, 1 firefighter, 2 residents and 5th member chosen by majority of the previous 4 members. 2 year terms Duties: General administration and responsibility for the operation of the Retirement Trust Fund for the City's police officers and firefighters. exrscs,(giaa,.Uaw 16, 1996