Item S1* 3:00 P.M. PUBLIC HEARING *
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 11/17/10 - KL
Bulk Item: Yes No X
Division: County Attorney
Staff Contact: Suzanne Hutton, #3473
AGENDA ITEM WORDING:
A public hearing for an ordinance creating Monroe County Code Chapter 2, Article III, Division 7
providing for quasi-judicial proceedings and ex-parte communications and, as allowed pursuant to F. S.
286.0115, officially adopting by resolution or ordinance the statutory requirements set forth in
paragraphs 1 through 4 of subsection (c) of Sec. 286.0115, Florida Statutes.
ITEM BACKGROUND:
Government in Florida is conducted "in the sunshine" pursuant to Chapter 286, Florida Statutes,
enabling the public to voice its opinions to local elected public officials. Subsequent to a court decision
finding an ex-parte communication to create a rebuttable presumption of prejudice and sufficient, if not
rebutted, to invalidate a quasi-judicial action taken by a county commission, the legislature enacted Sec.
286.0115, Florida Statutes which sets forth certain requirements regarding access to local public
officials in connection with subsequent quasi-judicial proceedings, particularly such hearings on local
government land use matters. This ordinance creates a section in the Monroe County Code setting
forth the procedures specified in paragraphs 1 through 4 of subsection (c) of Sec. 286.0115, Florida
Statutes. Adherence to these procedures will remove the presumption of prejudice that may arise from
ex parte communications with county officials.
PREVIOUS RELEVANT BOCC ACTION:
10/20/10 BOCC approved public hearing for 11/17/10 @ 3:00 p.m. in Key Largo, FL
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST: N/A INDIRECT COST: BUDGETED: Yes No
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY: N/A SOURCE OF FUNDS: N/A
REVENUE PRODUCING: Yes x No AMOUNT PER MONTH Year
APPROVED BY: County Atty OMB/Purchasing Risk Management
DOCUMENTATION: Included x Not Required
DISPOSITION: AGENDA ITEM #
Revised 2/05
ORDINANCE NO. — 2010
AN ORDINANCE CREATING MONROE COUNTY CODE CHAPTER 2,
ARTICLE III, DIVISION 7; PROVIDING FOR QUASI-JUDICIAL
PROCEEDINGS AND EX-PARTE COMMUNICATIONS; PROVIDING FOR
THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH;
PROVIDING FOR INCORPORATION INTO THE MONROE COUNTY
CODE OF ORDINANCES; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, government in Florida is conducted in the sunshine pursuant to Chapter 286,
Florida Statutes, thereby enabling the public to voice its opinions to local elected public officials; and
WHEREAS, subsequent to a court decision finding an ex-parte communication to create a
rebuttable presumption of prejudice and sufficient, if not rebutted, to invalidate a quasi-judicial action
taken by a county commission, the legislature enacted Sec. 286.0115, F.S.; and
WHEREAS, Section 286.0115, Florida Statutes sets forth certain requirements regarding the
access to local public officials in connection with subsequent quasi-judicial proceedings, particularly
such hearings on local government land use matters; and
WHEREAS, the promulgation of an ordinance or resolution setting forth those procedures
specified in paragraphs 1 through 4 of subsection (c) of Sec. 286.0115 and adherence to those
procedures shall remove the presumption of prejudice arising from ex parte communications with
county officials; and
WHEREAS, Sec. 286.0115 allows, but does not require, a county to adopt by ordinance or
resolution the statutory requirements in order for those requirements to apply; and
WHEREAS, it is desired to set forth the statutory requirements and such supplemental
requirements as may be adopted by means of a resolution;
NOW THEREFORE, BE IT ORDAINED by the Board of County Commissioners of
Monroe County, that:
SECTION 1. Monroe County Code, Chapter 2, Article III, Division 7 is hereby created to read:
Section 2-220. Quasi -Judicial Proceedings
(a) Definitions.
(1) Locallrublic oficial means any elected or appointed public official holding a county eF
rigid office who recommends or takes quasi-judicial action as a member of a board or
commission. The term does not include a member of the board or commission of any state yZ cy or
authori .
Quasi -Judicial Proceedings and Ex Pa de Communications
_(2) Ex parte communications mean communications made in the absence of one or more of
the affected parties.
(3) Quasi judicial act means the action of public officers applying regulations or rules to facts
determined through a decision -making process.
(44) Legislative act means the formulation of policy and adoption of a regulation or rule
through which that policy is implemented.
(b) Distinction between auasi-iudicial and legislative acts.
A quasi-judicial act determines the rules of law applicable, and the rights affected by them, in relation
to past transactions, while a legislative or administrative order prescribes what a rule or administrative
duty shall be with respect to transactions to be executed in the future.
1'l Ex Parte Communications.
(1) Generally Allowed.
AU person not otherwise prohibited by statute, charter provision, or ordinance may discuss with any
local public official the merits of any matter on which action may be taken by any board or
commission on which the local public official is a member. If adopted by county or municipal
ordinance or resolution, adherence to the following_ procedures shall remove the presumption of
prejudice arising from ex parte communications with local public officials.
a. The substance of any ex parte communication with a local public official which relates to
quasi judicial action pending before the official is not presumed prejudicial to the action if the
subject of the communication and the identity of the person, group, or entity with whom the
communication took place is disclosed and made a part of the record before final action on the
matter.
b. A local public official may read a written communication from any person. However, a
written communication that relates to quasi- udicial action pending before a local public
official shall not be presumed prejudicial to the action, and such written communication shall
be made a part of the record before final action on the matter.
c. Local public officials may conduct investigations and site visits and may receive expert
opinions regarding_ quasi-judicial action pending before them. Such activities shall not be
presumed prejudicial to the action if the existence of the investi atiom site visit or expert
opinion is made a part of the record before final action on the matter.
d. Disclosure made pursuant to subparagraphs (a), (b). and (c) must be made before or during
the public meeting at which a vote is taken on such matters so that persons who have opinions
contrary to those expressed in the ex parte communication are given a reasonable opportunity
to refute or respond to the communication. This subsection does not subject local public
officials to part III of chapter 112 for not complying with this paragraph
Quasi -Judicial Proceedings and Ex Porte Communications
(2) Limitations on Ex Parte Communications
Pursuant to court opinions regarding unfair labor practices no ex parte communications are
allowed between the county commissioners and either members or representatives of the
union, or members of management during a period of impasse As other matters are identified
for which ex parte communications are prohibited by law, this provision may be updated by
ordinance or resolution.
(d) Minimum Procedures to be Followed in a Quasi-judicial Proceeding
Individual boards and commissions having authority to perform quasi-judicial functions such
as the Board of County Commissioners Planning Commission Contractors ExaminingBoard,
oard
and the Construction Board of Adjustments and Appeals may adopt procedures additional to
the following. Hearsay evidence may be used for the purpose of supplementing or explaining
any direct evidence but shall not be sufficient in itself to support a fmding unless it would be
admissible in civil actions. At a minimum all quasi judicial proceedings shall provide the
following:
(1) Reasonable notice in advance of the proceeding;
(2) An opportunity to call and examine witnesses-,
(3) An opportunity to introduce evidence-,
(4) An opportunity to cross examine witnesses,• and
(5) An opportunity to rebut evidence
(e) Rules Governing Quasi-judicial Proceedings on Local Government Land Use Matters
(1) In a Quasi-judicial proceeding on local government land use matters a person who appears
before the decision -making body who is not a party or party -intervenor shall be allowed to
testify before the decision -making body, subject to control by the decision -making body, and
may be requested to respond to questions from the decision -making body, but need not be
sworn as a witness, is not required to be subject to cross-examination and is not required to be
Qualified as an expert witness. The decision -making body shall assigg weight and credibility to
such testimony as it deems appropriate A party or party -intervenor in a quasi judicial
proceeding on local government land use matters upon request by another party or party -
intervenor, shall be sworn as a witness shall be subject to cross-examination by other parties
or party -intervenors, and shall be required to be qualified as an expert witness as appropriate
(2) Ina quasi-judicial proceeding on local government land use matters a person may not be
precluded from communicating directly with a member of the decision -making body by
application of ex pane communication prohibitions Disclosure of such communications by a
member of the decision -making body is not required and such nondisclosure shall not be
presumed prejudicial to the decision of the decision -making body. All decisions of the
decision -making body in a quasi-judicial proceeding on local government land use matters
Quasi -Judicial Proceedings and Ex Parte Communications
must be supported by substantial, competent evidence in the record pertinent to the proceeding_
irrespective of such communications.
SECTION 2. INCLUSION IN THE BOCC ADMINISTRATIVE PROCEDURES. Procedure
1.03(i) of the BOCC Administrative Procedures, is hereby amended to incorporate the provisions
contained herein, for use by Monroe County in the conduct of quasi-judicial hearings.
SECTION 3. SEVERABILITY. Should any provision of this Ordinance be declared by a court of
competent jurisdiction to be invalid, the same shall not affect the validity of this Ordinance as whole,
or any part thereof, other than the part declared to be invalid. If this ordinance or any provision thereof
shall be held to be inapplicable to any person, property or
circumstances, such holding shall not affect its applicability to any other person, property or
circumstances.
SECTION 4. CONFLICT WITH OTHER ORDINANCES. All ordinances or parts of ordinances
in conflict with this Ordinance are hereby repealed to the extent of said conflict.
SECTION 5. INCLUSION IN THE CODE OF ORDINANCES. The provisions of this Ordinance
shall be included and incorporated in the Code of Ordinances of the County of Monroe, Florida, as an
addition or amendment thereto, and shall be appropriately renumbered to conform to the uniform
numbering system of the code.
SECTION 6. EFFECTIVE DATE. This Ordinance shall take effect upon filing with the
Department of State as provided in Section 125.66(2), Florida Statutes.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a
regular meeting of said Board held on the _ day of , 2010.
Mayor Murphy
Mayor Pro Tem Carruthers
Commissioner DiGennaro
Commissioner Neugent
Commissioner Wigington
(SEAL)
Attest: DANNY L. KOLHAGE, Clerk
Deputy Clerk
Quasi -Judicial Proceedings and Ex Parte Communications
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
Lo
Mayor/Chairperson
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. Statutes & Constitution :View Statutes: Online Sunshine Page 1 of 2
Select Year: 2010 Go
The 2010 Florida Statutes
Title XIX Chapter 286 View Entire Chapter
PUBLIC BUSINESS PUBLIC BUSINESS: MISCELLANEOUS PROVISIONS
286.0115 Access to local public officials; quasi-judicial proceedings on local government land
use matters.—
(1)(a) A county or municipality may adopt an ordinance or resolution removing the presumption of
prejudice from ex parte communications with local public officials by establishing a process to disclose
ex parte communications with such officials pursuant to this subsection or by adopting an alternative
process for such disclosure. However, this subsection does not require a county or municipality to adopt
any ordinance or resolution establishing a disclosure process.
(b) As used in this subsection, the term "local public official" means any elected or appointed public
official holding a county or municipal office who recommends or takes quasi-judicial action as a member
of a board or commission. The term does not include a member of the board or commission of any state
agency or authority.
(c) Any person not otherwise prohibited by statute, charter provision, or ordinance may discuss with
any local public official the merits of any matter on which action may be taken by any board or
commission on which the local public official is a member. If adopted by county or municipal ordinance
or resolution, adherence to the following procedures shall remove the presumption of prejudice arising
from ex parte communications with local public officials.
1. The substance of any ex parte communication with a local public official which relates to quasi-
judicial action pending before the official is not presumed prejudicial to the action if the subject of the
communication and the identity of the person, group, or entity with whom the communication took
place is disclosed and made a part of the record before final action on the matter.
2. A local public official may read a written communication from any person. However, a written
communication that relates to quasi-judicial action pending before a local public official shall not be
presumed prejudicial to the action, and such written communication shall be made a part of the record
before final action on the matter.
3. Local public officials may conduct investigations and site visits and may receive expert opinions
regarding quasi-judicial action pending before them. Such activities shall not be presumed prejudicial to
the action if the existence of the investigation, site visit, or expert opinion is made a part of the record
before final action on the matter.
4. Disclosure made pursuant to subparagraphs 1., 2., and 3. must be made before or during the
public meeting at which a vote is taken on such matters, so that persons who have opinions contrary to
those expressed in the ex parte communication are given a reasonable opportunity to refute or respond
to the communication. This subsection does not subject local public officials to part III of chapter 112
for not complying with this paragraph.
(2)(a) Notwithstanding the provisions of subsection (1), a county or municipality may adopt an
ordinance or resolution establishing the procedures and provisions of this subsection for quasi-judicial
16**..• //......... Imo.. +_+.. -I . - /QT A TT TTL`O 1-'--1__ _C _n A ..,.-. J r . s n., , I n — . ... ... ..
Statutes & Constitution :View Statutes: Online Sunshine
Page 2 of 2
proceedings on local government land use matters. The ordinance or resolution shall provide procedures
and provisions identical to this subsection. However, this subsection does not require a county or
municipality to adopt such an ordinance or resolution.
(b) In a quasi-judicial proceeding on local government land use matters, a person who appears
before the decisionmaking body who is not a party or party -intervenor shall be allowed to testify before
the decisionmaking body, subject to control by the decisionmaking body, and may be requested to
respond to questions from the decisionmaking body, but need not be sworn as a witness, is not required
to be subject to cross-examination, and is not required to be qualified as an expert witness. The
decisionmaking body shall assign weight and credibility to such testimony as it deems appropriate. A
party or party -intervenor in a quasi-judicial proceeding on local government land use matters, upon
request by another party or party -intervenor, shall be sworn as a witness, shall be subject to cross-
examination by other parties or party -intervenors, and shall be required to be qualified as an expert
witness, as appropriate.
(c) In a quasi-judicial proceeding on local government land use matters, a person may not be
precluded from communicating directly with a member of the decisionmaking body by application of ex
parte communication prohibitions. Disclosure of such communications by a member of the
decisionmaking body is not required, and such nondisclosure shall not be presumed prejudicial to the
decision of the decisionmaking body. All decisions of the decisionmaking body in a quasi-judicial
proceeding on local government land use matters must be supported by substantial, competent evidence
in the record pertinent to the proceeding, irrespective of such communications.
(3) This section does not restrict the authority of any board or commission to establish rules or
procedures governing public hearings or contacts with local public officials.
History.—s. 1, ch. 95-352; s. 31, ch. 96-324.
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