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HomeMy WebLinkAboutQ. County AttorneyBOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: October 20, 2010 - KW Department: County Attorney Bulk Item: Yes X No Staff Contact Person: Christine Limbert-Barrows #3475 AGENDA ITEM WORDING: Approval to advertise a public hearing to consider adoption of an ordinance amending Sections 26-1, 26-96 and 26-98 of the Monroe County Code to expand the prohibition against diving or snorkeling in any manmade water body or marina, or within 300 ft. of an improved residential or commercial shoreline, "beginning four days prior to the opening of and".. "continuing until ten (10) days has elapsed after the opening of the commercial lobster season" to the existing prohibition which is "during the entirety of the lobster mini -season". ITEM BACKGROUND: In response to the volume of complaints from property owners and the ever-increasing public safety and environmental issues resulting from the 2-day spiny lobster mini -season, in 2003 the BOCC adopted Ordinance No. 044-2003 to prohibit diving/snorkeling in any manmade waterbody or marina or within 300 ft. of an improved residential or commercial shoreline during the entirety of the 2-day mini -season for spiny lobster. Still, each year there continues to be an increased detrimental impact on the community, straining law enforcement and emergency services who must respond to the numerous accidents, collisions and citizen complaints and increase their efforts to prevent or minimize environmental damage to our fragile environment. The expansion of the prohibition period to include the 4 days prior to the start of mini -season and continuing through mini -season and until 10 days has elapsed after the opening of commercial lobster season will extend the period of prevention and law enforcement efforts and provide added relief to Keys residents and property owners. PREVIOUS RELEVANT BOCC ACTION: 12/17/2003 Ordinance No. 044-2003 prohibiting diving/snorkeling in any manmade waterbody or marina or within 300 ft. of an improved residential or commercial shoreline during the entirety of the 2- day sport season for spiny lobster 6/18/2003 Ordinance No. 020-2003 further defining "navigable canal' and "man-made water body" 2/19/2003 Ordinance No. 003-2003 Established "No Discharge Zone" (see Exhibit A - Map) CONTRACT/AGREEMENT CHANGES: Sec. 26-1 defines "commercial lobster season"; Sec. 26-96 adds "and commercial lobster season"; Sec. 26-98 expands prohibition to include "beginning four days prior to the opening of and" "and continuing until ten (10) days has elapsed after the opening of the commercial lobster season " STAFF RECOMMENDATIONS: Approval. TOTAL COST: N/A INDIRECT COST: BUDGETED: Yes No _ DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: REVENUE PRODUCING: Yes _ No CtW APPROVED BY: County Atty SOURCE OF FUNDS: AMOUNT PER MONTH Year OMB/Purchasing Risk Management DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM # Revised 7/09 MAYOR MURPHY ORDINANCE NO. - 2010 AN ORDINANCE BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA AMENDING SECTIONS 26-1, 26-96 AND 26-98 OF THE MONROE COUNTY CODE, FURTHER RESTRICTING DIVING AND SNORKELING DURING LOBSTER MINI - SEASON AND COMMERCIAL LOBSTER SEASON; PROVIDING A DEFINITION FOR "COMMERCIAL LOBSTER SEASON"; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR INCORPORATION INTO THE MONROE COUNTY CODE OF ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Board of County Commissioners finds that the increased diver and boat traffic in navigable canals, and within 300 feet of marinas, improved residential and commercial shorelines before and during the two-day lobster mini -season running through the start of the commercial lobster season presents heightened public safety problems not generally applicable at other times of the year; and WHEREAS, the Board of County Commissioners finds and declares these public safety problems to constitute a public nuisance, detrimental to the community as a whole, due to the level of policing and emergency services required to respond to accidents and collisions that occur because of the close proximity of divers and vessel traffic in small areas; and WHEREAS, the Board of County Commissioners finds that the extended prohibition of diving and snorkeling preceding lobster mini -season mining through commercial lobster season does not intrude upon the Florida Fish and Wildlife Conservation Commission's jurisdiction over the harvesting of spiny lobster and in fact furthers the Commissioner's stated intent of protecting and conserving Florida's spiny lobster resources; NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: SECTION 1. Section 26-1, Monroe County Code is hereby amended to read as follows: Sec. 26-1. Definitions. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1 MAYOR MURPHY Combustion vessel exclusion zone means that no person shall operate a motorized vessel (as defined in this section), by use of a combustion engine, or in some cases where specifically established an electric motor, in any area spatially defined as "Combustion Vessel Exclusion Zone" and that is so identified as a "Combustion Vessel Exclusion Zone" by appropriate signage. Commercial lobster season means the period of time designated for harvesting of lobster, currently from August 6 through March 31 of the following_ year, authorized by the Marine Fisheries Department of the Florida Fish and Wildlife Conservation Commission pursuant to Section 68B-24.005, Florida Administrative Code, as amended from time to time. Commercial vessel means: (1) Any vessel primarily engaged in the taking or landing of saltwater fish or saltwater products or freshwater fish or freshwater products, or any vessel licensed pursuant to F.S. § 370.06 from which commercial quantities of saltwater products are harvested, from within and without the waters of this state for sale either to the consumer, retail dealer, or wholesale dealer; or (2) Any other vessel, except a recreational vessel as defined in this section. Discharge includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping. Dive means to wholly or partially submerge one's body while equipped with a mask or goggles, whether or not any type of underwater breathing apparatus is used. Floating structure means as defined in F.S. § 327.02. Houseboat means as provided in F.S. § 337.02. Idle speed/no wake means that a vessel cannot proceed at a speed greater than that speed that is necessary to maintain steerage. Live -aboard vessel: (1) The term "live -aboard vessel" means as provided in F.S. § 327.02. (2) Any vessel with a person living aboard and that is anchored, moored, or docked in the same location for 72 consecutive hours is presumed to be a live -aboard vessel. Lobster mini -season means the two-day sport season authorized by the state pursuant to F.A.C. 68B-24.005. N MAYOR MURPHY Manager means the manager and/or management staff of the land based facility authorized by separate resolution and/or agreement to operate, manage and maintain any county mooring field. Manmade water body means a water body that was created by excavation by mechanical means under human control and shall include a canal, cut basin, or channel where its edges or margins have subsequently been modified by natural forces. (1) For the purposes of this chapter, such water bodies may have natural components, for instance a channel or canal may have been dredged such that the dredge material was used to create land on one side, but not the other, thus leaving a relatively natural shoreline on the opposite side. (2) Also for the purposes of this chapter, the manmade water body must have "buildings," as defined in part H of this Code, along its shoreline to be applicable. If buildings are not present on a given shoreline on the date of adoption of the ordinance from which this section is derived, but such buildings are constructed at a later date, then the ordinance from which this section is derived becomes effective at that time. Marine sanitation device means as defined in F.S. § 327.02. Mobile pump -out vessel means any vessel capable of pumping out and receiving human body wastes and other effluent contained in marine sanitation devices installed aboard other vessels. Mooring field means areas in and adjacent to the County installed mooring systems, including designated anchoring areas. These areas may include both County and State owned submerged lands, but shall exclude privately owned submerged lands. The delineation, implementation and management of County mooring fields shall be approved by the state. Motorboat means as provided in F.S. § 327.02. This definition is synonymous with the definition of motorized vessel. Motorized vessel means any vessel that is propelled or powered by machinery and that is capable of being used as a means of transportation on water. No discharge zone means any of the areas located within State waters within the boundaries of the Florida Keys National Marine Sanctuary, as identified in Federal Register Notice 66:144, pp 38967-38969, promulgated on July 26, 2001, and as shown in attachment A of the ordinance from which this section is derived. Owner means as provided in F.S. § 327.02. Person means an individual, partnership, firm, corporation, association, or other entity, but does not include an individual on board a public vessel or the owner of a public vessel. 3 MAYOR MURPHY Public vessel means a vessel owned or a bareboat chartered and operated by the United States, the State, the County, or by a foreign nation, except when such vessel is in commerce. Pump -out station means a facility that pumps or receives human body wastes and other effluent out of marine sanitation device installed on board vessels. Real property owner means any part owner, tenant in common, tenant in partnership, joint tenant or tenant by the entirety, with legal or beneficial title to the whole or to part of real property. Recreational vessel means any vessel: (1) Manufactured and used primarily for noncommercial purposes; or (2) Leased, rented, or chartered to a person for the person's noncommercial use. Residential area means any area designated improved subdivision, suburban residential or suburban residential limited, sparsely settled, urban residential, and urban residential mobile home under the County land development regulations. Seaworthy condition means that a vessel is in good condition and capable of the use for which it was designed. Sewage means human body wastes and wastes from toilets and other receptacles, including approved marine sanitation devices (MSD) intended to receive or retain body wastes, whether treated or raw. Slow speed/minimum wake means that a vessel must be fully off plane and completely settled into the water. It must not proceed at a speed greater than that which is reasonable and prudent to avoid the creation of an excessive wake or other hazardous condition under the existing circumstances. A vessel is not proceeding at a slow speed/minimum wake when it is: (1) Operating on a plane; (2) In the process of coming off plane and settling into the water or coming up onto a plane; or (3) Operating at a speed that creates a wake that is unreasonable or unnecessarily endangers other vessels. Speargun means any device whether commercially manufactured or hand -made, that is designed and constructed so as to be capable of forcefully discharging at great velocity any spear or any similar projectile in a direction determined by the user thereof for a distance greater than two feet (24 inches) whether or not such spear or projectile is tethered to the firing apparatus or otherwise limited in its range. No distinction shall be 4 MAYOR MURPHY made as to the mechanical construction or physical means used in such devices to create the potential energy necessary to eject or fire such spear or similar projectiles. Vessel means as provided in F. S. § 327.02. Water -borne craft or structures subject to density allocation and wastewater management requirements (water -borne craft) means and encompasses any of the following definitions, houseboat, floating structures, live aboard vessel, and vessel as defined in this chapter and F.S. § 327.02 when the object of such definitions is being occupied in a manner that would be construed as either a residential or business purpose that would normally require wastewater facilities. Such occupation, be it residential or commercial in nature, could involve either long-term or short-term tenancies and typically would involve occupancy including habitation, eating, sleeping, bathing, and or a business functions where the occupant were aboard the water -borne craft for several hours per day. (1) Water -borne craft may as a matter of course occupy a dry slip, wet slip, or mooring as defined in this chapter and exist in a marina, marine facility, mooring field or other location within or on waters of this state as defined in this chapter. (2) Water -borne craft are subject to a density allocation commensurate with the district it occupies and is to be calculated as the equivalent of one density unit. Water -borne craft are subject to wastewater management requirements as defined in this section and part H of this Code. SECTION 2. Sec. 26-96, Monroe County Code is hereby amended to read as follows: See. 26-96. Intent and purpose. The intent and purpose of this article is to abate the destruction of property, deleterious environmental effects, and criminal trespass that results from the close proximity of divers to public and private property, as well as from the interactions and explorations by divers of docks, piers, and bulkheads in search of spiny lobster during the lobster mini -season and commercial lobster season. Such activities constitute a public nuisance. SECTION 3. Sec. 26-98, Monroe County Code is hereby amended to read as follows: Sec. 26-9& Diving and snorkeling prohibited. (a) It is a public nuisance and is unlawful for any person to dive or snorkel in any manmade water body or marina, or within 300 feet of an improved residential or commercial shoreline beginningfour (4) days prior to the openin of f and during the entirety of the lobster mini -season and continuing until ten (10) days has elapsed after the opening of the commercial lobster season. A map reflecting the boundaries of the prohibited areas shall be available at the County Department of Marine Resources for reference by the public 5 MAYOR MURPHY and shall be incorporated by reference into this article. The prohibited areas shall be marked by signs on the shoreline at conspicuous places, as has previously been done for the general slow speed/no wake zone for manmade water bodies, at marinas and along the main arterial waterways of the County as may be helpful to inform the public of the existence of the prohibition. (b) Nothing in this article shall prohibit diving incidental to vessel or dock maintenance provided the diver performing the maintenance lawfully displays a diver down flag and otherwise complies with the requirements of F.S. ch. 327. SECTION 4. SEVERABILITY. If any portion of this ordinance is for any reason held invalid or declared to be unconstitutional, inoperative or void, such holding shall not affect the remaining portions of this ordinance. 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 5. 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 6. INCLUSION IN CODE OF ORDINANCES. The provisions of this ordinance shall be included and incorporated into 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 7. EFFECTIVE DATE. This Ordinance shall take effect 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 held on the day of , 2010. Mayor Sylvia Murphy Mayor Pro Tem Heather Carruthers Commissioner Kim Wigington Commissioner George Neugent Commissioner Mario Di Gennaro (SEAL) BOARD OF COUNTY COMMISSIONERS Attest: DANNY L. KOLHAGE, Clerk OF MONROE COUNTY, FLORIDA By Deputy Clerk By Mayor/Chairperson A P P n 0 V j� 0 A . 10 F0 Rs a emu. ,� / A'i 6 HRISTIE' le h9. I IPe SAIi�iC)d�d Date I��-�Ar�roFanl Y �_u ADDITIONAL BACK-UP Municode Page 1 of 5 WATERWAYS->> ARTICLE 1. - IN GENERAL >> IARTICLE 1. - IN GENERAL Sec. 26-j. - Definifions. Sec. 26-2. - Irn sifion of county annual vessel re�Istration fee. Sec. 26-3. - oorinck or docking of liars-azard vessels In manmade canals and basins sarohlbited. Sec. 264. - Property owners rohibiked fronts allowinct veoe tion or trees to €nterfeee woth vessels vetlin €awes navigable canals. Sec. 2 -5. - SDear uns. Sec. 26-6. - No discharge zones. Secs. 26-77:,26- -deserved. c. - . -Definitions. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Combustion vessel exclusion zone means that no person shall operate a motorized vessel (as defined in this section), by use of a combustion engine, or in some cases where specifically established an electric motor, in any area spatially defined as "Combustion Vessel Exclusion Zone" and that is so identified as a "Combustion Vessel Exclusion Zone" by appropriate signage. Commercial vessel means: (1) Any vessel primarily engaged in the taking or landing of saltwater fish or saltwater products or freshwater fish or freshwater products, or any vessel licensed pursuant to F.S. § 370.06 from which commercial quantities of saltwater products are harvested, from within and without the waters of this state for sale either to the consumer, retail dealer, or wholesale dealer, or (2) Any other vessel, except a recreational vessel as defined in this section. Discharge includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping. Dive means to wholly or partially submerge one's body while equipped with a mask or goggles, whether or not any type of underwater breathing apparatus is used. Floating structure means as defined in F.S. § 327.02. Houseboat means as provided in F.S. § 337.02. Idle speed/no wake means that a vessel cannot proceed at a speed greater than that speed that is necessary to maintain steerage. Live -aboard vessel. (1) The term "live -aboard vessel" means as provided in F.S. § 327.02. (2) Any vessel with a person Irving aboard and that is anchored, moored, or docked in the same location for 72 consecutive hours is presumed to be a live -aboard vessel. Lobster mini -season means the two-day sport season authorized by the state pursuant to F.A.C. 6813- 24.005. Manager means the manager and/or management staff of the land based facility authorized by separate resolution and/or agreement to operate, manage and maintain any county mooring field. Manmade water body means a water body that was created by excavation by mechanical means under human control and shall include a canal, cut basin, or channel where its edges or margins have subsequently been modified by natural forces. (1) http://Iibrary.municode.com/print.aspx?clientIID=14298&HTMRequest=http%3a%2fn/o2fli... 9/20/2010 Municode rage Y. of :i For the purposes of this chapter, such water bodies may have natural components, for instance a channel or canal may have been dredged such that the dredge material was used to create land on one side, but not the other, thus leaving a relatively natural shoreline on the opposite side. (2) Also for the purposes of this chapter, the manmade water body must have "buildings," as defined in part II of this Code, along its shoreline to be applicable. If buildings are not present on a given shoreline on the date of adoption of the ordinance from which this section is derived, but such buildings are constructed at a later date, then the ordinance from which this section is derived becomes effective at that time. Marine sanitation device means as defined in F.S. § 327.02. Mobile pump -out vessel means any vessel capable of pumping out and receiving human body wastes and other effluent contained in marine sanitation devices installed aboard other vessels. Mooring field means areas in and adjacent to the county installed mooring systems, including designated anchoring areas. These areas may include both county and state owned submerged lands, but shall exclude privately owned submerged lands. The delineation, implementation and management of county mooring fields shall be approved by the state. Motorboat means as provided in F.S. § 327.02. This definition is synonymous with the definition of motorized vessel. Motorized vessel means any vessel that is propelled or powered by machinery and that is capable of being used as a means of transportation on water. No discharge zone means any of the areas located within state waters within the boundaries of the Florida Keys National Marine Sanctuary, as identified in Federal Register Notice 66:144, pp 38967-38969, promulgated on July 26, 2001, and as shown in attachment A of the ordinance from which this section is derived. Owner means as provided in F.S. § 377.02. Person means an individual, partnership, firm, corporation, association, or other entity, but does not include an individual on board a public vessel or the owner of a public vessel. Public vessel means a vessel owned or a bareboat chartered and operated by the United States, the state, the county, or by a foreign nation, except when such vessel is in commerce. Pump -out station means a facility that pumps or receives human body wastes and other effluent out of marine sanitation device installed on board vessels. Real property owner means any part owner, tenant in common, tenant in partnership, joint tenant or tenant by the entirety, with legal or beneficial title to the whole or to part of real property. Recreational vessel means any vessel: (1) Manufactured and used primarily for noncommercial purposes; or (2) Leased, rented, or chartered to a person for the person's noncommercial use. Residential area means any area designated improved subdivision, suburban residential or suburban residential limited, sparsely settled, urban residential, and urban residential mobile home under the county land development regulations. Seaworthy condition means that a vessel is in good condition and capable of the use for which it was designed. Sewage means human body wastes and wastes from toilets and other receptacles, including approved marine sanitation devices (MSD) intended to receive or retain body wastes, whether treated or raw. Slow speed/minimum wake means that a vessel must be fully off plane and completely settled into the water. It must not proceed at a speed greater than that which is reasonable and prudent to avoid the creation of an excessive wake or other hazardous condition under the existing circumstances. A vessel is not proceeding at a slow speed/minimum wake when it is: (1) Operating on a plane; (2) In the process of coming off plane and settling into the water or coming up onto a plane; or (3) Operating at a speed that creates a wake that is unreasonable or unnecessarily endangers other vessels. Speargun means any device whether commercially manufactured or hand -made, that is designed and constructed so as to be capable of forcefully discharging at great velocity any spear or any similar projectile in a http://library.municode. comlprint. aspx?clientID=14298&E TNMequest=http%3 a%2Plo2fli... 9/20/2010 Municode ,Page 3 of �o direction determined by the user thereof for a distance greater than two feet (24 inches) whether or not such spear or projectile is tethered to the firing apparatus or otherwise limited in its range. No distinction shall be made as to the mechanical construction or physical means used in such devices to create the potential energy necessary to eject or fire such spear or similar projectiles. Vessel means as provided in F.S. § 327.02. Water -borne craft or structures subject to density allocation and wastewater management requirements (water -borne craft) means and encompasses any of the following definitions, houseboat, floating structures, live aboard vessel, and vessel as defined in this chapter and F.S. § 327.02 when the object of such definitions is being occupied in a manner that would be construed as either a residential or business purpose that would normally require wastewater facilities. Such occupation, be it residential or commercial in nature, could involve either longterm or shortterm tenancies and typically would involve occupancy including habitation, eating, sleeping, bathing, and or a business functions where the occupant were aboard the water -borne craft for several hours per day. (1) Water -borne craft may as a matter of course occupy a dry slip, wet slip, or mooring as defined in this chapter and exist in a marina, marine facility, mooring field or other location within or on waters of this state as defined in this chapter. (2) Water -borne craft are subject to a density allocation commensurate with the district it occupies and is to be calculated as the equivalent of one density unit Water-bome craft are subject to wastewater management requirements as defined in this section and part II of this Code. (Code 1979, § 5.5-1; Ord. No. 031-2002, § 5; Ord. No. 006-2003, § 1; Ord. No. 020-2003, §§ 1, 2; Ord. No. 040-2003, § 1; Ord. No. 044-2003, § 2; Ord. No. 015-2004, §§ 1, 2) c. -.- Imposition of county annual vessel i tr ti fee. Pursuant to F.S. § 328.66(1), the county hereby Imposes an annual registration flee on vessels registered, operated or stored In the water within the county. The fee shall be 50 percent of the applicable state registration fee. (Code 1979, § 5.5-131; Ord. No. 034-2002, § 1) ecn r docking of live-aboardvessels a canals and basins prohibited. (a) Definitions. Definitions shall apply as provided in this article or as referenced from other chapters as appropriate. (b) Prohibition on live -aboard vessels in residential areas, exception. (1) No person may anchor, moor or dock, or permit or cause to be anchored, moored or docked, any live -aboard vessel: a. In a manmade canal, manmade basin, or manmade cove that is adjacent to any residential area; or b. Within 100 feet of a manmade canal mouth, manmade basin, manmade cove, or a manmade or natural shoreline whose adjacent or upland property is a residential area. (2) Any vessel with a person aboard that is anchored, moored or docked in the same location for 72 hours is presumed to be a live -aboard vessel. (3) This prohibition does not apply to a marina in lawful operation on the effective date of the ordinance from which this section is derived. (c) Penalties. The county code enforcement officer is charged with enforcement responsibility for this section. (1) Any person cited for a violation of this section shall be deemed charged with a noncriminal infraction, and notified to appear before the county court. Citations shall be issued pursuant to F.S. § 327.74, (uniform boating citations) by any law enforcement agency authorized to issue such citations. The civil penalty for any such infraction is $50.00, except as otherwise provided in this section. (2) Any person cited for an infraction under this section may: a. Post a bond that shall be equal in amount to the applicable civil penalty; or b. Sign and accept a citation indicating a promise to appear. (3) http://library.municode. comlprint. aspx?clientlD=14298&HTMRequest=http%3 a%2fb/o2fli... 9/20/2010 Municode Page 4 of _') The officer may indicate on the citation the time and location of the scheduled hearing and shall indicatq the applicable civil penalty. (4) Any person who willfully refuses to post a bond or accept and sign a summons is guilty of a misdemeanor of the second degree. (5) Any person charged with a noncriminal infraction under this section may: a. Pay the civil penalty, either by mail or in person within ten days of the date of receiving the citation; or b. If he has posted bond, forfeit bond by not appearing at the designated time and location. If the person cited follows either of the procedures in subsection (c)(4) of this section, he shall be deemed to have admitted the infraction and to have waived his right to a hearing on the issue of commission of the infraction. Such admission shall not be used as evidence in any other proceedings. (6) Any person electing to appear before the county court or who is required so to appear shall be deemed to have waived the limitations on the civil penalty specified in subsection (c)(1) of this section. The county court, after a hearing, shall make a determination as to whether an infraction has been committed. If the commission of an infraction has been proven, the county court may impose a civil penalty not to exceed $500.00. (7) At a hearing under this chapter, the commission of a charged infraction must be proved beyond a reasonable doubt. (8) If a person is found by the county court to have committed an infraction, he may appeal that finding to the circuit court. (d) Affected area. This section is effective only in the unincorporated areas of the county. (a) Provisions to be cumulative. This section is cumulative to any other substantive laws or ordinances that regulate live -aboard vessels and is cumulative to any enforcement procedure that those laws or ordinances may provide. This section does not supersede or repeal or otherwise modify those laws, ordinances or enforcement procedures in any way. (Code 1979, § 5.5-16; Ord. No. 3-1995, §§ 1-3, 6, 7, Ord. No. 031-2002, § 2; Ord. No. 020-2003, § 3) c. . - Property ownersprohibited from allowingi to interfere with vessels traveling upon navigable canals. (a) Definitions. Definitions shall apply as provided in this article or as referenced from other chapters as appropriate. (b) Prohibition on causing or permitting trees to interfere with vessels upon any manmade water body. No real property owner may cause, suffer, or permit a tree, trees or other vegetation, to grow, or otherwise extend, from his real property into or over a manmade water body in such a way or manner as to constitute a navigational hazard to, or to interfere with, vessels engaged in a journey or ride upon the man-made water body. It shall be presumed that vegetation extending from the shoreline of a manmade water body beyond the approximate mean low water mark by more than ten percent of the overall perpendicular width of the water body at the point of measurement constitutes a navigational hazard. This presumption is aligned with the permitted limits for the construction of docking facilities in the land development regulations. (c) Penalties for violation. (1) Pursuant to F.S. § 125.69(1), violations of this section shall be prosecuted in the same manner as misdemeanors are prosecuted. Such violation shall be prosecuted in the name of the state in a court having jurisdiction of misdemeanors by the prosecuting attorney thereof and upon conviction shall be punished by a fine not to exceed $500.00 or by imprisonment in the county jail not to exceed 60 days or by both fine and imprisonment (2) Violations of this section shall also be punished as in section 8-4, and F.S. ch. 162, or by prosecution before the code enforcement special magistrate as provided prosecution pursuant to the citation and civil infraction procedure in chater 8, article II, and F.S. ch. 162. (3) This section may also be enforced through any lawful procedure or process available to the county for the enforcement of its ordinances, inducing by way of illustration and not limitation, suits for injunctive relief. (Code 1979, § 5.5-17; Ord. No. 42-2001, §§ 1-3; Ord. No. 031-2002, § 2; Ord. No. 020-2003, §§ 4, 5; Ord. No. 005-2005, § 1) (a) Prohibited activity. It is unlawful for any person to use, fire or discharge any speargun, as defined in this section, on or below the surface of any manmade canal in the unincorporated areas of the county. http://librwy.municode. comlprint. aspx?clientIID= 14298&HT V Request=http%3 a%2f%2fli... 9/20/2010 Municode Page 5 of 5 (b) Penalties. Any person convicted of a violation of this section shall be penalized in accordance with section 1-8. In addition, any person convicted of a violation of this section shall forfeit the speargun used by such person in committing such offense to the county sheriff for destruction in the same manner as forfeited firearms are disposed of by the sheriff. (Code 1979, § 13-5, Ord. No. 23-1984, § 1) c. - No discharge zones. (a) Definitions. Definitions shall apply as provided in this article or as referenced from other chapters as appropriate. (b) Established. A no discharge zone is hereby established to coincide exactly with those boundaries identified in Federal Register Notice 66: 144, pp. 38967-38969, promulgated on July 26, 2001. (Code 1979, §§ 5.5.46, 5.5.47; Ord. No. 20-1999, §§ 1, 2; Ord No. 031-2002, § 3; Oral. No. 003-2003, § 1; Ord. No. 020-2003, § 6) Exhibits A through O are not included herein but are available for public inspection in the county offices. Sees. -7 - . _ Reserved. http://librazy.municode. com/print. aspx?clientID=14298&HTMRequest=http%3 a%2f%2fli... 9/20/2010 Municode rage i or z •. .- .; . .. .r• . • .r a-� - �,. DIVINGARTICLE IV. - MINI -SEASON Sec. 26- . - Intent and pair o »e. Sec. 2-97. - Definitions. oe. 26-. - s�norkelin [arc hibited. Sec. 26- . - Penelfies. - . - Intent and purpose. The intent and purpose of this article is to abate the destruction of property, deleterious environmental effects, and criminal trespass that results from the close proximity of divers to public and private property, as well as from the interactions and explorations by divers of docks, piers, and bulkheads in search of spiny lobster during the lobster mini -season. Such activities constitute a public nuisance. (Code 1979, § 5.5-140; Ord. No. 044-2003, § 1) c. 7. - Definitions. Definitions shall apply as provided in this article or as referenced from other chapters as appropriate. (Code 1979, § 5.5-141; Ord. No. 044-2003, § 1) c. - - Diving andn rk li r i it . (a) It is a public nuisance and unlawful for any person to dive or snorkel in any manmade water body or marina, or within 300 feet of an improved residential or commercial shoreline during the entirety of the lobster mini -season. A map reflecting the boundaries of the prohibited areas shall be available at the county department of marine resources for reference by the public and shall be incorporated by reference into this article. The prohibited areas shall be marked by signs on the shoreline at conspicuous places, as has previously been done for the general slow speed/no wake zone for manmade water bodies, at marinas and along the main arterial waterways of the county as may be helpful to inform the public of the existence of the prohibition. (b) Nothing in this article shall prohibit diving incidental to vessel or dock maintenance provided the diver performing the maintenance lawfully displays a diver down flag and otherwise complies with the requirements of F.S. ch. 327. (Code 1979, § 5.5-142, Oral. No. 044-2003, § 1) c. Penalties. Any person cited for a violation of this article shall be deemed charged with a noncriminal infraction, shall be cited for such an infraction, and shall be cited to appear before the county court Citations shall be issued pursuant to F.S. § 327.74 (uniform boating citations) by any law enforcement agency authorized to issue such citations. The civil penalty for any such infraction is $50.00, except as otherwise provided in this section. (1) Any person cited for an infraction under this section may: a. Post a bond that shall be equal in amount to the applicable civil penalty; or b. Sign and accept a citation indicating a promise to appear. (2) http://library.municode. com/print. aspx?clientIID= 14298&HTMRequest=http%3 a%2f�/o2fli... 9/20/2010 Municode Page 2 of 2 The officer may indicate on the citation the time and location of the scheduled hearing and shall indicate the applicable civil penalty. (3) Any person who willfully refuses to post a bond or accept and sign a summons is guilty of a misdemeanor of the second degree. (4) Any person charged with a noncriminal infraction under this section may: a. Pay the civil penalty, either by mail or in person within ten days of the date of receiving the citation; or b. If he has posted bond, forfeit bond by not appearing at the designated time and location. (5) If the person cited follows either of the procedures in subsection (4) of this section, he shall be deemed to have admitted the infraction and to have waived his right to a hearing on the issue of commission of the infraction. Such admission shall not be used as evidence in any other proceedings. (6) Any person electing to appear before the county court or who is required to appear shall be deemed to have waived the limitations on the civil penalty specified in this section. The county court, after a hearing shall make a determination as to whether an infraction has been committed. If the commission of an infraction has been proven, the county court may impose a civil penalty not to exceed $500.00. (7) At a hearing under this chapter the commission of a charged infraction must be proven beyond a reasonable doubt. (8) If a person found by the county court to have committed an infraction, he may appeal that finding to the circuit court (9) Failure to pay fines within 30 days shall be punished as a secondary misdemeanor. (Code 1979, § 5.5-143, Ord. No. 044-2003, § 1) http://library.municode.comlprint.aspx?clientID=14298&HTMRequest=http%3 a%2PIo2fli... 9/20/2010 V rr,lli ' " 1.2. ORDINANCE NO. 044 2003 AN ORDINANCE OF THE BOARD OF COUNTY COMNIISSIONERS OF MONROE COUNTY, FLORIDA, CREATING ARTICLE VII IN CHAPTER 5.5 OF THE COUNTY CODE OF ORDINANCES, "BOATS, DOCKS AND WATERWAYS," PROHIBITING DIVING AND SNORKELING WITHIN MANMADE WATERBODIES, AND WITHIN 300 FEET OF MARINAS, IMPROVED RESIDENTIAL, AND COMMERCIAL SHORELINES DURING THE ENTIRETY OF THE TWO-DAY SPORT SEASON FOR SPINY LOBSTER; PROVIDING FOR REPEAL OF CONFLICTING PROVISIONS; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE; AND PROVIDING FOR AN EFFECTIVE DATE WHEREAS, the Marine Fisheries Department of the Florida Fish and Wildlife Conservation Commission authorizes a two-day sport season each year for the harvesting of spiny lobster; and WHEREAS, the Board of County Commissioners finds that the increased diver and boat traffic in the navigable canals, and within 300 feet of marinas, improved residential, and commercial shorelines during the two-day sport season presents heightened public safety problems not generally applicable at other times of the year; and WHEREAS, the Board of County Commissioners finds and declares these public safety problems to constitute a public nuisance, detrimental to the community as a whole, due to the level of policing and emergency services required to respond to accidents and collisions that occur because of the close proximity of divers and vessel traffic in small areas; and WHEREAS, the close proximity of divers to public and private property, as well as their interaction and exploration of docks, piers, and bulkheads in search of spiny lobster, leads to unnecessary destruction of property and deleterious environmental effects; and WHEREAS, the Board of County Commissioners declares this unnecessary destruction of property and the deleterious environmental effects caused in the navigable canals, marinas, and along improved residential and commercial shorelines to be a public nuisance; and WHEREAS, the Board of County Commissioners finds and declares that the interaction of divers with publicly and privately owned docks, piers, and bulkheads, in the canals, marinas, and along improved residential and commercial shorelines, additionally constitutes the crime of trespass under state law; and WHEREAS, the Board of County Commissioners finds that the prohibition of diving and snorkeling does not intrude upon the Florida Fish and Wildlife Conservation Commission's jurisdiction over the harvesting of spiny lobster and in fact furthers the Commission's stated intent of protecting and conserving Florida's spiny lobster resources. BE IT ORDAINED BY THE BOARD OF COUNTY COMMIISSIONERS OF MONROE COUNTY, FLORIDA; THAT THE FOLLOWING SHOULD BE ADDED TO THE MONROE COUNTY CODE OF ORDINANCES: Section 1. Add Article VII, Chapter 5.5, "Boats, Docks, and Waterways as provided immediately below: Article VII. Diving and snorkeling prohibited during the lobster mini -season. Sec. 5.5-140: Intent and Purpose (a) The intent and purpose of this Article is to abate the destruction of property, deleterious environmental effects, and criminal trespass that results from the close proximity of divers to public and private property, as well as their interaction and exploration of docks, piers, and bulkheads in search of spiny lobster during the lobster mini -season; which activities constitute a public nuisance. See.5.5-141: Defimitions (a) Definitions shall apply as provided in Article I of this Chapter or as referenced from other Chapters as appropriate. Sec. 5.5-142: Diving and snorkeling prohibited. (a) It is a public nuisance and unlawful for any person to dive or snorkel in any manmade waterbody as defined in this chapter, marina, or within 300 feet of an improved residential or commercial shoreline during the entirety of the lobster mini -season. A map reflecting the boundaries of the prohibited areas shall be available at the Department of Marine Resources, Monroe County for reference by the public and shall be incorporated by reference into this ordinance. The prohibited areas shall be marked by signs on the shoreline at conspicuous places, as has previously been done for the general slow speed / no wake zone for man made waterbodies, at marinas and along the main arterial waterways of the County as may be helpful to inform the public of the existence of the prohibition. (b) Exception - Nothing in this ordinance shall prohibit diving incidental to vessel or dock maintenance provided the diver performing the maintenance lawfully displays a diver down flag and otherwise complies with the requirements of Chapter 327, Florida Statutes, as amended from time to time. Sec.5.5-143: Penalties. (a) Any person cited for a violation of this Article shall be deemed charged with a non criminal infraction, shall be cited for such an infraction, and shall be cited to appear before the County Court. Citations shall be issued pursuant to § 327.74, F.S. (uniform boating citations) by any law enforcement agency authorized to issue such citations. The civil penalty for any such infraction is fifty dollars ($50.00), except as otherwise provided in this section. (1) Any person cited for an infraction under this section may: (i) Post a bond, which shall be equal in amount to the applicable civil penalty; or (ii) Sign and accept a citation indicating a promise to appear. (2) The officer may indicate on the citation the time and location of the scheduled hearing and shall indicate the applicable civil penalty. (3) Any person who willfully refuses to post a bond or accept and sign a summons is guilty of a misdemeanor of the second degree. (4) Any person charged with a non criminal infraction under this section may: (i) Pay the civil penalty, either by mail or in person within ten (10) days of the date of receiving the citation, or (ii) If he/she has posted bond, forfeit bond by not appearing at the designated time and location. (5) If the person cited follows either of the above procedures, he/she shall be deemed to have admitted the infraction and to have waived his/her right to a hearing on the issue of commission of the infraction. Such admission shall not be used as evidence in any other proceedings. (6) Any person electing to appear before the County Court or who is required to appear shall be deemed to have waived the limitations on the civil penalty specified in subsection (a). The County Court, after a hearing shall make a determination as to whether an infraction has been committed. If the commission of an infraction has been proven, the County Court may impose a civil penalty not to exceed five hundred dollars ($500.00). (7)At a hearing under this chapter the commission of a charged infraction must be proven beyond a reasonable doubt. (8) If a person found by the County Court to have committed an infraction, he/she may appeal that finding to the Circuit Court. (9) Failure to pay fines within thirty (30) days shall be punished as a secondary misdemeanor. Section 2. Add the following definitions to Article I of this Chapter. (b) "Dive" means to wholly or partially submerge one's body while equipped with a mask or goggles, whether or not any type of underwater breathing apparatus is used. (g) "Lobster mini -season" means the two-day sport season authorized by the Marine Fisheries Department of the Florida Fish and Wildlife Conservation Commission pursuant to Section 68B-24.005, Florida Administrative Code, as amended from time to time. Section 3. Severability. If any section, subsection, sentence, clause or provision of this Ordinance is held invalid, the remainder of this Ordinance shall not be affected by such invalidity. Section 4. Repeal of inconsistent Ordinance clauses. 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 Monroe County Code. The provisions of this Ordinance shall be included and incorporated in the Code of Ordinances of the County of Monroe, Florida, as an addition to amendment thereto, and shall be appropriately renumbered to conform to the uniform numbering system of the Code. Section 6. Effective date This Ordinance shall become effective upon filing with the Office of the Secretary of State of the State of Florida, THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the 17s' day of December , 2003. Mayor Murray E. Nelson yes Mayor Pro Tern David P. Rice yes Commissioner Dixie Spehar yes Commissioner George Neugent yes Commissioner Charles Sonny McCoy —T (SEAL) AMST: DANNY L. KOLHAGE, CLERK BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA E By A!!!V IV Mayor/Chairman r r s z �. � rr� -< w O CD rb _zr w 0 G3 7 MONROE COUNTY ATTORNEY AP V AS T yY FORM: CHIEF R ►IL T cv WOLFED Date_ Cj ATTORNEY Marine Resources ORDINANCE NO.020-2003 AN ORDINANCE OF THE MONROE COUNTY BOARD OF COMMISSIONERS AMENDING ARTICLE II, SECTION 5.5-17, BOATS, DOCKS, AND WATERWAYS, ELIMINATING THE TERM AND DEFINITION "NAVIGABLE CANAL" AND REPLACING IT INSTEAD WITH THE TERM AND THE DEFINITION "MAN MADE WATER BODY" AS CURRENTLY ESTABLISHED IN ARTICLE I OF THE CHAPTER, FURTHER AMENDING THE CHAPTER TO MODIFY CERTAIN ARTICLES AND SECTIONS THROUGHOUT THE CHAPTER TO MOVE ALL DEFINITIONS TO ARTICLE I OF THE CHAPTER, PROVIDING FOR INCLUSION IN THE CODE OF ORDINANCES, PROVIDING FOR SEVERABILITY, PROVIDING FOR REPEAL OF SECTIONS FOUND INCONSISTENT WITH THIS REVISION, AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the term "navigable canal' as defined in Chapter 5.5, 17 is overbroad and exceeds the intent of the Board of County Commissioners when adopting the Section; and WHEREAS, the term "man-made water body" as also defined in the Chapter better defines the intent of the Board in adopting an Ordinance requiring that man-made canals be maintained for unobstructed navigation; and WHEREAS, it is the intent of the -Board to consolidate the Code, such as definition sections, for simplicity of use, now, therefore, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS, MONROE COUNTY, FLORIDA THAT REVISIONS TO CHAPTER 5.5 OCCUR AS FOLLOWS: Section 1. Revise Chapter 5.5, Article I to add definitions as follows: Commercial vessel means: (1) any vessel primarily engaged in the taking or landing of saltwater fish or saltwater products or freshwater fish or freshwater products, or any vessel licensed pursuant to [F.S.] § 370.06 from which commercial quantities of saltwater products are harvested, from within and without the waters of this state for sale either to the consumer, retail dealer, or wholesale dealer; (2) any other vessel, except a recreational vessel as defined in this section. Manager means the manager and/or management staff of the land based facility authorized by separate resolution and/or agreement to operate, manage and maintain any county mooring field(s). Mooring field(s) means areas in and adjacent to Monroe County installed mooring systems, including designated anchoring areas. These areas may include both county and state owned submerged lands, but shall exclude privately owned submerged lands. The delineation, implementation and management of county mooring fields will be approved by the state. C:ITEMP\OrdMangroveTrimRev.070903.doc Marine Resources Real Property Owner means any part owner, tenant in common, tenant in partnership, joint tenant or tenant by the entirety, with legal or beneficial title to the whole or to part of real property. Recreational vessel means any vessel: (a) Manufactured and used primarily for noncommercial purposes; or (b) Leased, rented, or chartered to a person for the person's noncommercial use. Residential area means any area designated improved subdivision, suburban residential or suburban residential limited, sparsely settled, urban residential, and urban residential mobile home under the Monroe County land development regulations. Seaworthy condition means that a vessel is in good condition and capable of the use for which it was designed. Section 2. Include definitions, existing or to be included in Article I, as referenced in Ordinance 006- 2003, but revised herein: Motorized Vessel means any vessel, which is propelled or powered by machinery and which is capable of being used as a means of transportation on water. Combustion Yessel Exclusion Zone means that no person shall operate a motorized vessel (as defined in Article I of this Chapter), by use of a combustion engine, or in some cases where specifically established - an electric motor, in any area spatially defined as "Combustion Vessel Exclusion Zone" and which is so identified as a "Combustion Vessel Exclusion Zone" by appropriate signage. Section 3. Replace 5.5-16 (a) Definitions with the following text: (a) Definitions shall apply as provided in Article I of this chapter or as referenced from other chapters as appropriate. Section 4. Replace 5.5-17 (a) Definitions with the following text: (a) Definitions shall apply as provided in Article I of this chapter or as referenced from other chapters as appropriate. Section 5. Revise Section 5.5-17 (b) to read as follows: (b) . Prohibition on causing or permitting trees to interfere with vessels upon any man-made waterbody. No real property owner may cause, suffer, or permit a tree, trees or other vegetation, to grow, or otherwise extend, from his or her real property into or over a man-made water body in such a way or manner as to constitute a navigational hazard to, or to interfere with, vessels engaged in a journey or ride upon the man-made water body. Section 6. Replace 5.5-46. Definitions, with the following text: Definitions shall apply as provided in Article I of this chapter or as referenced from other chapters as appropriate. Section 7. Replace 5.5-77. Definitions, with the following text: C:\TEMMOrdMangwveTdrnRev.070903. doc Marine Resources Definitions shall apply as provided in Article I of this chapter or as referenced from other chapters as appropriate. Section 8. Revise Chapter 5.5-108 (c) as follows: Combustion Engine Exclusion Zones: No person shall operate a motorized vessel in the following areas spatially defined as "combustion engine exclusion zones." Chapter 5.5,109 (c) (1) through (4) are retained intact. Section 9. Severability. If any section, subsection, sentence, clause or provision of this Ordinance is held invalid, the remainder of this Ordinance shall not be affected by such invalidity. Section 10. Repeal of inconsistent ordinance clauses. All Ordinances or parts of Ordinances in conflict with this Ordinance are hereby repealed to the extent of said conflict. Section 11. Inclusion in the Monroe County Code. The provisions of this Ordinance shall be included and incorporated in the Code of Ordinances of the County of Monroe, Florida, as an addition to amendment thereto, and shall be appropriately renumbered to conform to the uniform numbering system of the Code. Section 12. Effective date. This Ordinance shall be filed with the Office of the Secretary of State of the State of Florida, and will take effect upon receipt by that agency. PASSED AND ADOPTED by the Board of County Commissioners, Monroe County, Florida at a regular meeting of said Board held on the 18 m day of June . A.D., 2003. Mayor Dixie Spehar YES Mayor Pro Tern Murray Nelson YES Commissioner George Neugent not present `�.,�cs�.�` /.�,/ t, . Commissioner Charles "Sonny" McCoy YES Commissioner David Rice YES BOARD OF COUNTY COMMISSIONERS `,, '' •Ate, IbAb&,Y L.KOLHAGE, Clerk OF MONROE COUNTY, FLORIDA vDeUty�lerk C+ d LU s =`�ul 0 0 U- J -�LLJ xJo W .� J a g LL. � N 'Iel.0j4; >,72 J"� Mayor/Chairperson APPROVED A510 F C)r. to A GA R ¢RT O WE C.\TEMMOrdMangmveTrimRev.070903.dce Marine Resources ORDINANCE NO. 003 2003 AN ORDINANCE MODIFYING CHAPTER 5.51 ARTICLE III, MONROE COUNTY CODE CONCERNING NO DISCHARGE ZONES, PROVIDING FOR SEVERABILI TY; PROVIDING FOR THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR INCORPORATION INTO THE MONROE COUNTY CODE; PROVIDING FOR AN EFFECTIVE DATE WHEREAS, the tropical waters surrounding the Florida Keys contain an ecologically diverse tropical marine ecosystem, including the only coral reef system in the continental United States; WHEREAS, these waters are of such great interest and beauty, and hold such concern for protection, that the State of Florida has designated them as Outstanding Florida Waters and Congress has designated them as a part of the Florida Keys National Marine Sanctuary; and WHEREAS, Monroe County considered the protection of these waters so critical that in 1999, the Board of County Commissioners designated 17 zones throughout the waters of the County as No Discharge Zones; and WHEREAS, subsequent to this effort, the County also petitioned the Governor and the U.S. Environmental Protection Agency to designate all of the waters of the Florida Keys as a No Discharge Zone (NDZ); and WHEREAS, through the efforts of the Governor and the U.S. EPA, State waters within the boundaries of the Florida Keys National Marine Sanctuary will become a No Discharge Zone on June 19, 2002; and WHEREAS, it is the County's desire to modify its No Discharge Zone Ordinance to mirror the conditions set by the federal designation and to augment Marine Resources the State and federal governments potential for enforcement of the NDZ designation; now, therefore BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA; THAT Section 1. Change the title of Article III (formerly Article M) to "No Discharge Zone Established" and apply the following modifications to Chapter 5.5, Article III: See.5.5-46. Definitions (a) Definitions shall apply as provided in Article I of this chapter or are referenced from other chapters as appropriate. Sec. 5.5-47. No Discharge Zone Established (a) A No Discharge Zone is hereby established to coincide exactly with those boundaries identified in Federal Register Notice 66: 144,pp 38967-38969, promulgated on 26 July 2001. Sec. 5.5-48. Force and Effect (a) This Ordinance becomes effective in the No Discharge Zone identified on the map in Exhibit A upon final approval at the federal level, U.S. EPA Region IV. Section 6. Reserve Secs. 5.5-49 — 5.5-75 2 Marine Resources Section 7. Severability. If any section, subsection, sentence, clause or provision of this Ordinance is held invalid, the remainder of this Ordinance shall not be affected by such invalidity. Section 8. Repeal of inconsistent ordinance clauses. All Ordinances or parts of Ordinances in conflict with this Ordinance are hereby repealed to the extent of said conflict. ' Section 9. Inclusion in the Monroe County Code. The provisions of this Ordinance shall be included and incorporated in the Code of Ordinances of the County of Monroe, Florida, as an addition to amendment thereto, and shall be appropriately renumbered to conform to the uniform numbering system of the Code. Section 10. Effective date This Ordinance shall be filed with the Office of the Secretary of State of the State of Florida, but will not take effect until the No Discharge Zone identified in Federal Register Notice 66: 144,pp 38967-38968 becomes effective under federal law. k, Marine Resources PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the 19'h day of February . 2003. Mayor Dixie Spehar yes Mayor Pro Tem Murray Nelson Commissioner George Neugent yes Commissioner Charles "Sonny" McCoy yes Commissioner David Rice Ts (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK Board of County Commissioners Of Monroe County, Florida BY Deputy Clerk APP OVED AS TO FOR AND LEG ICIENC By A W S OFFICE ,�/iie; 11,�2 L4a'a-0- Mayor/Chairman N j M r�r 13- (� "Ti oC-) — O C� nD C"3 D n cn _.. U C7 W O N Q � CD s� cu X v W ,cl) 0 O Z In BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: October 20.2010 Bulk Item: Yes X No Division: County Attorney Department: County Attorney Staff Contact Person: Cynthia L. Hall x 3174 AGENDA ITEM WORDING: Ratification of collective bargaining agreement with Teamsters Local 769, effective retroactive to October 1, 2010. ITEM BACKGROUND: The current collective bargaining agreement with Teamsters Local 769 covered 1 year and ends on September 30, 2010. The County and Union have reached tentative agreement on all clauses in a new, 3-year agreement. The Union ratified the agreement in 3 separate membership votes on September 20, 21 and 22, 2010. PREVIOUS RELEVANT BOCC ACTION: February 2010 BOCC ratification of 1-year agreement following impasse hearing. CONTRACT/AGREEMENT CHANGES: Other than minor changes of a housekeeping nature, the only changes vis-a-vis the current CBA are as follows: 1. Article 36 — Changes term of CBA to a 3 year agreement. 2. Article 32.3 (new paragraph) — "Me too' clause — provides that Teamsters employees will receive the same cost of living allowance and merit increases as County non -union employees during the term of the CBA if, and only if, County non -union employees also receive across- the-board COLA or merit increases. Otherwise, Teamsters employees will receive 0% COLA and 0% merit. 3. Article 24.4 — Changes time period within which grievance must be submitted at Step One of grievance process from three to five days. 4. Article 29.7 (new paragraph) — Adds new language re "Additional Days Off With Pay" to (a) clarify that "additional days off without pay" granted to County non -union employees last year are not holidays, and (b) provide that Teamsters members may receive the "days off with pay" if granted by the BOCC for County non -union employees. There is no plan to award "additional days off with pay" to County non -union employees in the upcoming fiscal year. STAFF RECOMMENDATIONS: Approval. TOTAL COST: Approx. $4.5 MM unloaded, BUDGETED: Yes X No Approx. $6.7MM loaded COST TO COUNTY: _—$4.5 MM unloaded SOURCE OF FUNDS: $6.7MM loaded REVENUE PRODUCING: Yes _ No X AMOUNT PER MONTH Year APPROVED BY: County Attu DOCUMENTATION: DISPOSITION: Included chasing To Follow, Risk Manageme Not Required AGENDA ITEM # MONROE COUNTY BOARD OF COUNTY COMMISSIONERS { CONTRACT SUMMARY Contract with: Teamsters Local 769 Contract # Effective Date: October 1, 2010 Expiration Date: September 30, 2013 Contract Purpose/Description: Collective bargaining agreement. Contract Manager: Teresa Aguiar 4458 Employee Services (Name) (Ext.) (Department/Stop #) for BOCC meeting on Oct. 20, 2010 Agenda Deadline: Oct. 5, 2010 CONTRACT COSTS Total Dollar Value of Contract: $ -$ 4.7MM unloaded, $6.5MM loaded (annually) Bud ete149 Yes® No ❑ A ut C d Current Year Portion: $ -$4.7 MM unloaded g ccon o es. -_ Grant: $ 0 _ County Match: $ ADDITIONAL COSTS Estimated Ongoing Costs: $ /yr For: (Not included in dollar value above) (e . maintenance, CONTRACT REVIEW Changes Date In Needed ---Reviewer Division Director ;Q-LO Yes❑ No Risk Manageme t Yes❑ N -? O.M.B./Purc ing Lzl -)0 Yes[:] N County Attorney L 1') Yes❑ N Comments: Date Out BOARD OF COUNTY COMMISSIONERS Mayor Sylvia I Murphy, District 5 —� Mayor Pro Tem Heather Carruthers, District 3 UNTYSo�MONROE IGm wg;ngton, District iKEY WESTLORIDA 33040 George Neugent, District 2O2 (305) 294-4641 Mario Di Gennaro, District 4 Office of the Employee Services Division Director The Historic Gato Cigar Factory• 1100 Simonton Street, Suite 269 K Key West, FL 33040` (305) 292-4459 — Phone (305) 292-4564 - Fax TO: County Commissioners FROM: Teresa E. Aguiar, Director Employee Services DATE: October 5, 2010 SUBJ: Proposed Collective Bargaining Agreement with Teamster's Local Union No. 769 The current collective bargaining agreement between Monroe County and Teamster's Local Union No. 769 expired on September 30, 2010. We have reached agreement on a three-year contract and the details of the changes are outlined below: 1. Article 36 — Changes term of CBA to a 3 year asreement. The County and Union have been negotiating a new agreement since April, 2010. The current agreement was in effect for one year and expired on September 30, 2010. The agreement was previously approved by the BOCC on December 16, 2009. 2. Article 32.3 (new oarasrauh) — As with the previous contract, in this contract the Teamsters agree to accept 0% COLA and 0% merit (paragraph 32.1), with one change: This contract adds a new paragraph, which states that if County non -union employees receive across -the board COLA or merit increases, then the Teamsters employees will receive the same COLA and/or merit increases. During the negotiations, the County proposed to the Union that they accept the same cost of living allowance and merit increases as non -union county employees ("Me too" clause). The County's proposal to the Union also included language stating that any proposed decrease in salary would also be provided to the bargaining unit employees if an across the board salary decrease was also provided to the non -union employees. The "decrease" language would only have applied if an across the board COLA or merit were first given to County employees, and then taken away. The Union would not agree to the exact language the County proposed. If the County would have insisted on this clause we would have been at impasse. The County would have spent approximately $10,000 in man hours and fees to state our case with the Public Employers Relations Commission (PERC) special magistrate. After hearing both sides, the special magistrate would have then made a recommendation to you, the Board of County Commissioners, who would have the ultimate decision in the matter. After considering all the facts, including the likelihood that across the board COLA or merit increases would be first awarded and then eliminated, the County's bargaining management team decided to agree to take out the `decrease in salary' language, subject to your approval. The language that is being proposed to you does not necessarily mean that the bargaining unit will not also receive a decrease in salary if other non -union employees first receive an increase and then decrease in COLA or merit awards during the term of this agreement. What it does mean is that the County would have to bargain with the Teamsters over the economic effects of the change, if the Union asks to bargain. If the parties were unable to resolve their differences, as with all other negotiated terms, the matter could go to impasse and ultimately to the BOCC for resolution. On balance, staff believes that the proposal in article 32.3 when read together with article 32.1, which calls for 0% COLA and 0% merit during the term of the agreement unless County non- union employees receive COLA and merit, in which case Teamsters employees will receive the same increases, is fair to all parties. 3. Article 24.4 — Changes time period within which grievance must be submitted at Step One of grievance process from three to five days. This would allow for more time for the employees to appropriately address any grievances with their supervisor. This change has no financial impact and it is believed to be a fair proposal. 4. Article 29.7 (new uaraerayh) — Adds new language re "Additional Days Off With Pay" to (a) clarify that "additional days off without pay" granted to County non -union employees last year are not holidays, and (b) provide that Teamsters members may receive the "days off with pay" if granted by the BOCC for County non -union employees. There is no plan to award "additional days off with pay" to County non -union employees in the upcoming fiscal year. If the BOCC awards such "days off with pay" in years two and three of the contract, the Teamsters members would also receive the days off with pay. It is recommended that the Board approve these changes as submitted. If you have any questions, please do not hesitate to contact me at X4458. PROPOSED CONTRACT BETWEEN MONROE COUNTY AND TEAMSTERS LOCAL UNION NO.769 1 2 3 4 Article 1 5 6 Article 2 7 8 Article 3 9 10 Article 4 11 12 Article 5 13 14 Article 6 15 16 Article 7 17 18 Article 8 19 20 Article 9 21 22 Article 10 23 24 Article 11 25 26 Article 12 27 28 Article 13 29 3o Article 14 31 32 Article 15 33 34 Article 16 35 36 Article 17 37 38 Article 18 39 40 Article 19 41 42 Article 20 43 44 Article 21 45 46 Article 22 47 48 49 TABLE OF CONTENTS Recognition Intent and Purpose General Non -Discrimination Correspondence Bulletin Boards Management Rights Subcontracting Availability Safety Union Representation & Access Payroll Deduction, Union Initiation Fees and Union Dues No Strike - No Lockout Outside Employment Attendance and Punctuality Hours of Work Overtime On-Call/Standby Call Back Temporary Assignments Probationary Period Promotions — Job Openings Rev. 9/7/ 10 .. 1 - Paee No. 3 3 3 3 4 4 5 6 7 7 8 9 9 10 11 12 12 13 13 13 14 15 I Paee No. 2 3 Article 23 Discipline 15 4 5 Article 24 Grievance and Arbitration 16 6 7 Article 25 Separations 19 8 9 Article 26 Insurance 20 10 11 Article 27 Leaves of Absence 20 12 13 Article 28 Paid Sick Leave 22 14 15 Article 29 Holidays 25 16 17 Article 30 Annual Leave 27 18 19 Article 31 Uniforms, Tools and Equipment 29 20 21 Article 32 Remuneration 30 22 23 Article 33 Entire Agreement 31 24 25 Article 34 Printing Agreement 31 26 27 Article 35 Savings Clause 31 28 29 Article 36 Duration of Contract 32 30 31 Attachment A 33 32 33 Attachment B 34 34 35 PERC Certification dated April 7, 1994 36 36 Rev. 9/7/ 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 ARTICLE 1 Monroe County (the "County") recognizes Teamster Local Union #769 affiliated with the International Brotherhood of Teamsters (the "Union") as the exclusive bargaining agent for PERC purposes for the employees in the unit designated by the Florida Public Employees Relations Commission (PERC) in the PERC certification dated April 7, 1994, a copy of which is attached. ARTICLE 2 INTENT AND PURPOSE It is the intent and purpose of the parties hereto to set forth herein the basic Agreement covering rates of pay, hours of work, and conditions of employment; to achieve and maintain harmonious relations between the County and the Union; to ensure the continuous, uninterrupted and efficient operation of all departments; and to provide for the prompt and amicable adjustment of differences which may arise. ARTICLE 3 GENERAL 3.1 Masculine pronouns used herein shall refer to men or women or both. The use of masculine job classification titles shall be construed as including each gender as appropriate. 3.2 Unless otherwise stated in this Agreement, references to "days" shall mean calendar days and not workdays. 3.3 The term "Department Head" as used in this Agreement is defined as the level of administrator in the employees' department or division who requires Board of County Commissioner confirmation of the County Administrator's appointment. 3.4 Whenever the terms "County Administrator", "Division Director" or "Department Head" are used, the terms shall be interpreted to include their duly authorized representatives. ARTICLE 4 NON-DISCRIMINATION 4.1 Neither the County nor the Union shall discriminate against any employee as it relates to race, color, religion, gender, age, national origin, veteran status, marital status, finWhol status, sexual orientation/preference, disability/handicap, or membership in Union or lack of membership in a Union or because of any reason prohibited by law. Any claim of discrimination of retaliation based on the foregoing shall be processed exclusively through the appropriate administrative agency (e.g., Equal Employment Opportunity, Rev. 9/7/10 -3- I Florida Commission on Human Relations, Public Employers Relations Commission, etc.) 2 and shall not be subject to the grievance -arbitration procedures of this Agreement. 3 4 ARTICLE 5 5 6 CORRESPONDENCE 7 8 5.1 Unless otherwise provided in this Agreement all correspondence from the Union to the 9 County shall be directed to the County Administrator, and all correspondence from the 10 County to the Union shall be directed to the business representative. To comply with the 11 time limits contained in this Agreement, such correspondence shall actually be received 12 by the County Administrator or Union business representative on or before the date due 13 unless sent via the U.S. Postal Service. When the U.S. Postal Service is utilized, all time 14 limits contained in this Agreement shall be considered to be met so long as the postmark 15 date is in compliance with the specified time limit. 16 17 5.2 It is the responsibility of the Union to furnish the County with a mailing address for it and 18 to advise the County of any address changes. The initial addresses are as follows: 19 20 COUNTY UNION 21 Monroe County Teamsters Local Union #769 22 County Administrator 12365 West Dixie Highway 23 1100 Simonton Street, Suite 2-205 North Miami, FL 33161 24 Key West, FL 33040 (305) 642-6255 25 305-2924441 26 27 5.3 Each party shall copy the other on any and all correspondence pertaining to the contract 28 sent to or received from PERC. 29 30 ARTICLE 6 31 32 BULLETIN BOARDS 33 34 6.1 The County will furnish space for the Union to place one bulletin board at each location 35 where bargaining unit employees regularly report to work and where the County has an 36 official bulletin board. Those locations are specified in Attachment A. The bulletin 37 boards will be provided by and paid for by the Union. 38 39 6.2 The County Administrator shall approve the exact location for placement of all bulletin 40 boards. Bulletin boards may be no larger than 20 inches by 30 inches. 41 42 6.3 All notices placed on such bulletin boards shall relate solely to official Union business. 43 Notices posted shall not contain derogatory, defamatory, inflammatory, or untrue 44 statements about the County or any of its officials or anyone else. Bulletin boards shall 45 not be used to communicate with the general public, to distribute political matter, or for 46 advertising. All notices shall clearly state that they are "Teamster Notices" and shall be 47 signed and dated by the Union business representative or chief steward, who will accept 48 full responsibility for their content. 49 Rev. 9/7/10 - 4 - 1 6.4 The Union stewards shall check all bulletin boards at reasonable intervals to ensure that 2 no unauthorized materials have been posted. If unauthorized materials have been posted 3 or if the Union chief steward has been notified that bulletin boards contain unauthorized 4 materials, the Union chief steward shall cause such unauthorized materials to be removed 5 immediately. When the Human Resource Director receives complaints of unauthorized 6 material or inappropriate material, the Human Resources Director will notify the Union 7 Chief Steward for investigation and/or immediate removal of unauthorized or 8 inappropriate material. The County may remove any such inappropriate material if the 9 Union fails to timely remove the material. 10 11 ARTICLE 7 12 13 MANAGEMENT RIGHTS 14 15 7.1 Except as otherwise specifically limited in this Agreement, the Union recognizes and 16 agrees that the supervision, management, control and determination of the County 17 business, operations, working force, equipment, and facilities are exclusively vested in 18 the County and its designated officials, administrators, managers, and supervisors. The 19 County alone shall have the authority to determine and direct policies, mode, and 20 methods of providing its services and unilaterally set the standards for same, without any 21 interference in the management and conduct of the County's business by the Union or 22 any of its representatives. Except as expressly limited by a specific provision of this 23 Agreement, the County shall continue to have the exclusive right to take any action it 24 deems necessary or appropriate in the management of its business and the direction of its 25 work force. Without limiting the generality of the foregoing, such rights exclusively 26 reserved to the County shall include but not be limited to its right to determine the 27 existence or nonexistence of facts which are the basis of management decisions; the right 28 to determine the size and composition of its work forces; to determine the existence of a 29 job vacancy; to temporarily fill vacancies; to hire new employees from the outside at any 30 level; to select, reinstate, retire, promote, demote, evaluate, transfer, suspend, assign, 31 direct, lay-off and recall employees subject to the express provisions of this Agreement; 32 to determine the fact of lack of work; to determine questions of physical fitness, skills 33 and ability of employees to perform the work; to reward or reprimand, discharge or 34 otherwise discipline employees; to maintain the minimum qualifications for job 35 classifications and the amount and type of work needed; to engage in experimental and 36 development projects; to determine what records are to be made and kept, including those 37 records relating to hours of work of employees, who will make and keep the records, how 38 the records are to be made and kept; to establish new jobs, abolish or change existing 39 jobs; to determine the assignment of work; to contract out or subcontract work; to 40 schedule the hours and days to be worked on each job and to make time studies of work 41 loads, job assignments, methods of operation and efficiency from time to time and to 42 make changes based on said studies; to expand, reduce, alter, combine, transfer, assign, 43 cease, create, or restructure any department or operation for business purposes; to control, 44 regulate, and determine the number, type and use of supplies, machinery, equipment, 45 vehicles, and other property owned, used, possessed or leased by the County; to introduce 46 new, different or improved methods, means and processes of County services and 47 operations; to make or change rules and regulations, policies and practices for the 48 purpose of efficiency, safe practices and discipline; and otherwise generally to manage Rev. 9/7/10 - 5 - I the County, direct the work force, and establish terms and conditions of employment, 2 except as modified or restricted by a provision of this Agreement. 3 4 7.2 The County's failure to exercise any function or right hereby reserved to it, or, its 5 exercising any function or right in a particular way, shall not be deemed a waiver to its 6 rights to exercise such function or right, nor precludes the County from exercising the 7 same in some other way not in conflict with the express provisions of this Agreement. 8 The Union agrees that the County may exercise all of the above without advising the 9 Union of any proposed action; nor may the Union require the County to negotiate over 10 the decision or its effects on the employees except as altered by this Agreement. The 11 exercise of the rights specifically listed in this article does not preclude the employees or 12 their representatives from conferring with management or raising questions about the 13 practical consequences that decision on these matters may have on the terms and 14 conditions of employment. 15 16 7.3 Past practices of the Board of County Commissioners or County management shall not be 17 considered for the purpose of limiting the rights, responsibilities, or prerogatives of 18 management, nor for the purpose of enlarging upon the specific and express limitations 19 on management, which are contained in this Agreement. 20 21 7.4 If the County determines that civil emergency conditions exist, including but not limited 22 to riots, civil disorders, strikes or illegal work stoppages, hurricane conditions or similar 23 catastrophes or disorders, the provisions of this Agreement may be suspended by the 24 County during the term of the declared emergency. Notwithstanding the provisions of 25 Article 5, Correspondence, notice of such suspension will be given to the Union president 26 as soon as practicable after the determination has been made and by whatever means is 27 appropriate in the circumstances. 28 29 ARTICLE 8 30 31 SUBCONTRACTING 32 33 8.1 For purpose of this Agreement subcontracting shall mean work which is contracted out 34 by the County to an agency, person, company, or other provider which results in the 35 direct displacement or layoff of then existing bargaining unit employees. 36 37 8.2 The County reserves the right to subcontract work. Should subcontracting occur which 38 will result in bargaining unit employees being laid off, the County agrees to notify the 39 Union when the request to subcontract is put on the County Commission agenda. The 40 Union reserves the right to appear before the County Commission and express its position 41 to the County Commission for consideration at the time the Commission considers the 42 subcontracting agenda item without being held to the time limit of 5 minutes for a 43 representative for an organization. If employees are laid off due to subcontracting, they 44 shall have the rights provided under Article 25, Separations. 45 46 Rev. 9/7/10 -6- I ARTICLE 9 2 3 AVAILABILITY 4 5 9.1 All County employees covered by this Agreement are subject to call back and as such 6 shall keep the County informed of their address and telephone number and/or cellular 7 phone, if they have either a phone or cellular phone 8 9 9.2 All employees being paid for stand-by must maintain availability during such stand-by 10 period. Employees who do not answer a page during such stand-by status shall be subject 11 to disciplinary action. 12 13 9.3 It is understood that some employees will be required to work during declared 14 emergencies such as hurricanes. The County will attempt to provide employees as much 15 notice as possible that they will be required to work during the declared emergency. The 16 County will also attempt, where able under the circumstances, to give employees time to 17 secure their families and personal property prior to reporting for duty. The County will 18 pay employees who work during declared emergencies pursuant to Resolution No. 224- 19 2008 as amended from time to time. 20 21 ARTICLE 10 22 23 SAFETY 24 25 10.1 All employees and the County shall be responsible for following the provisions of the 26 safety policy manual. This policy will be available on the web for viewing. Each 27 department will have a copy available for review. The County shall continue to have the 28 right to unilaterally establish, adopt, change, amend, withdraw, and enforce the employee 29 safety manual so long as such actions do not result in a conflict with the specific terms 30 and conditions of this Agreement. Changes to the employee safety policy manual will be 31 conspicuously posted in all work areas. Except in the case of any emergency, such 32 changes will be posted at least five working days before the effective date of the change. 33 Failure to follow prescribed safety procedures may result in disciplinary action. 34 10.2 Protective devices, wearing apparel, and other equipment necessary to protect employees 35 from injury shall be provided by the County when the County requires such use. Such 36 items, when provided, must be used, and the Union agrees that willful neglect or failure 37 by an employee to obey safety regulations and to use safety equipment shall be just cause 38 for disciplinary action. Protective devices, apparel, and equipment necessary are 39 determined by the Supervisor with the concurrence of the Safety Officer and can be 40 defined as follows: 41 42 A. Gloves 43 B. Rubber boots 44 C. Safety hard hats 45 E. Safety vests 46 F. Safety goggles 47 G. Uniforms 48 H. Protective suits Rev. 9/7/10 - 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 I. Other safety related devices and/or apparel necessary to protect the employee. 10.3 Any employee shall have the right to present safety concerns and recommended solutions in writing to the Safety Officer. The Safety Officer shall respond in writing to the employee within 15 working days. 10.4 The County shall provide the safety policy on the website and provide to each department a copy for their review. 10.5 Employees determined by the County to be at risk shall be provided vaccinations for Hepatitis "A" and Triple "T" (Typhoid, Tetanus & Diphtheria). ARTICLE 11 UNION REPRESENTATION & ACCESS 11.1 The Union will not be required to represent in a grievance any employee who is not a member of the Union. 11.2 For the purpose of representing employees in accordance with the provisions of Article 24, "Grievance Procedure," the Union shall designate and/or elect stewards. Each steward will represent employees only in his/her department. The Union may designate one of the stewards to be the Chief Steward. 11.3 The business representative of the Union shall notify the Human Resources Director, in writing, of the name of the stewards and the areas they are representing, at least three days before they assume duty. If no such notice has been given, the County has no duty to recognize the stewards. 11.4 The Union steward may represent the Union or Union members in matters appropriate for grievance handling as set forth in this Agreement. Stewards may spend time on Union business during non -working time such as before or after a shift, and during authorized break and meal periods. In addition, when appropriate and in order to facilitate the scheduling of meetings and resolution of grievances, the County Administrator, in his sole discretion, or his designee may grant time off with pay to a steward to attend grievance hearings or meetings. 11.5 Officers or agents of Teamsters Local Union # 769, except County employees on duty, shall be allowed reasonable access to work sites and locations of the County with the advance consent of appropriate County officials, which consent will not be unreasonably withheld, provided that such access shall in no way interfere with the efficient operation of any department or crew. 11.6 The Union agrees that, during the term of this Agreement, its non -employee representatives and stewards shall deal only with the County Administrator, the County Attorney, or the Human Resources Director, or their designees, in matters subject to discussion in this Agreement. This does not prohibit a steward from addressing the concerns of individual employees with a supervisor or department head. Rev. 9/7/10 -8- 1 11.7 No Union member, agent or representative of the Union, or any person acting on behalf 2 of the Union may solicit County employees during the working hours of any employee 3 who is involved in the solicitation, nor distribute literature during working hours in areas 4 where the actual work of County employees is performed. 5 6 ARTICLE 12 7 8 PAYROLL DEDUCTION. UNION IMTIATION FEES AND UNION DUES 9 10 12.1 Upon receipt of a signed authorization in an acceptable form from an employee, the 11 initiation fee and regular monthly dues of the Union shall be deducted from such 12 employee's pay. Such deduction shall be effective on the next regular dues deduction 13 period following the date it is received in the Human Resources Department. The County 14 will not deduct dues in arrears except to correct errors made by the County. 15 16 12.2 Monthly Union dues shall be deducted in equal amounts in each of the twenty-six pay 17 periods of each year and shall be remitted by the County no later than the fifteenth of the 18 following month to the officer and address designated by the secretary -treasurer of the 19 Union. The Union will promptly refund to the County any amount paid to the Union in 20 error on account of the dues deduction provision. The Union shall give the County a 21 minimum of thirty days written notice of the effective date and amount of any change in 22 the amount of the dues to be deducted. 23 24 12.3 No deduction shall be made from the pay of any employee during any payroll period in 25 which the employee's net earnings for the payroll period are less than the amount of dues 26 to be paid, or where the deduction would result in an employee being paid less than the 27 minimum wage and/or overtime amount required by law. 28 29 12.4 An authorization for dues deduction may be canceled after thirty days from the date 30 written employee notice of the cancellation is received by the Union. The Union 31 Secretary -Treasurer will notify the County in writing to cease deductions. 32 33 12.5 The Union shall indemnify the County and any department of the County and hold it 34 harmless against any and all claims, demands, suits, or other forms of liability that may 35 arise out of, or by reason of, any action taken by the County or any department of the 36 County for the purpose of complying with the provisions of this article. 37 38 39 12.6 An employee transferred to a classification not in the bargaining unit or whose 40 employment is terminated shall cease to be subject to Union dues deduction beginning 41 with the month after the month in which such change in employee status occurs. 42 43 ARTICLE 13 44 45 NO STRIKE - NO LOCKOUT 46 47 13.1 During the'term of this Agreement, neither the Union nor its agents nor any employee, 48 for any reason, will authorize, institute, aid, condone, or engage in a slowdown, work 49 stoppage, strike, or any other interference with the work and statutory functions or other Rev. 9/7/ 10 - 9 - I obligations of the County. During the term of this Agreement neither the County nor its 2 agents for any reason shall authorize, institute, aid, or promote any lockout of employees 3 covered by this Agreement as a result of a labor dispute with the Union, unless there is a 4 violation of the Union's no strike commitment. 6 13.2 The Union agrees to notify all local officers and representatives of their obligation and 7 responsibility for maintaining compliance with this article, including their responsibility 8 to remain at work during any interruption which may be caused or initiated by others, and 9 to encourage employees violating Article 13 to return to work. 10 11 13.3 The County may discharge or discipline any employee who violates Section 13.1 and any 12 employee who fails to carry out his responsibilities under Section 13.1, and the Union 13 will not resort to the grievance procedure on such employee's behalf except to determine 14 if the prohibited action did in fact occur. 15 16 13.4 Nothing contained herein shall preclude the County from obtaining judicial restraint and 17 damages in the event of a violation of this article. 18 19 ARTICLE 14 20 21 OUTSIDE EMPLOYMENT 22 23 14.1 A. Full-time employees may engage in other employment during their off -duty hours. 24 However, County employment must be considered the primary employment. Employees 25 shall not, directly or indirectly, engage in any outside employment or financial interest 26 which may conflict, in the County's opinion, with the best interests of the County or 27 interfere with the employee's ability to perform the assigned County job. Examples 28 include, but are not limited to, outside employment which: 29 1) Prevents the employee from being available for work beyond normal working hours, 30 such as emergencies or peak work periods, when such availability is a regular part of 31 the employee's job; 32 2) Is conducted during the employee's work hours; 33 3) Utilizes County telephones, computers, supplies, or any other resources, facilities, or 34 equipment; 35 4) May reasonably be perceived by members of the public as a conflict of interest or 36 otherwise discredits public service. 37 B. Employees shall not be instructed or allowed to perform work for private individuals 38 or other governmental agencies as part of his/her County employment except in those 39 instances where such work is part of contract arrangements entered into by the Board of 40 County Commissioners with such private individuals or goverment agencies, or in those 41 cases where under prior Board of County Commission policy, the employee is to give 42 service in an emergency situation. 43 44 14.2 Employees who have accepted outside employment are not eligible for paid sick leave 45 when the leave is used to work on the outside job. Fraudulent use of sick or personal 46 absences will be cause for disciplinary action. 47 Rev. 9/7/ 10 - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 ARTICLE 15 ATTENDANCE AND PUNCTUALITY 15.1 It is the policy of the County to require employees to report for work punctually as scheduled and to work all scheduled hours and any required overtime. Excessive tardiness and excessive absences disrupt workflow and customer service and will not be tolerated. 15.2 Unauthorized or excessive absences or tardiness will result in disciplinary action, up to and including termination. Absences in excess of those allowed by policy, tardiness or leaving early without proper authorization are grounds for discipline. 15.3 Employees should notify their supervisor, as far in advance as possible whenever they are unable to report for work, know they will be late, or seek permission to leave early. Notification shall not be later than 1 hour after start time of employee's normal shift start. Such notification should include a reason for the absence and an indication of when the employee can be expected to report for work. If the supervisor or department head is unavailable, the division clerk or the County Administrator should be contacted and given the same information. 15.4 Employees who report for work without proper equipment or in improper attire may not be permitted to work. Employees, who report for work in a condition deemed not fit for work, whether for illness or any other reason, will not be allowed to work. 15.5 Employees are expected to report to their supervisor after being late or absent, giving an explanation of the circumstances surrounding their tardiness or absence, and certify that they are fit to return to work. 15.6 Employees who are absent from work for three consecutive workdays without giving any notice to the County will be considered as having "abandoned their position" and thereby voluntarily quit. Rev. 9/7/ 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 ARTICLE 16 HOURS OF WORK 16.1 The workweek shall start at 12:01 a.m. Sunday and end at 12:00 midnight Saturday, unless otherwise approved by the County Administrator. The County shall not indiscriminately change regularly scheduled working hours and days off of employees covered by this Agreement. Changes shall be made by reason of operational necessity and/or efficiency. Such changes require at least five working days notice to the affected employees except in the case of valid public necessity, such as equipment failure, unanticipated employee absences, and the like. Employees' regular work schedules shall contain two consecutive days off 16.2 Employees classified as regular full time will receive a total of one unpaid hour for meal/rest period per work shift, the time and sequence of which will be determined by the Supervisor and approved by the Department Head. If it is necessary for the non-exempt employee to work without a meal/rest period he/she will be otherwise compensated for that time. All other employees will receive meal or rest periods in an amount and time deemed appropriate by their Supervisor. Meal and rest periods shall be scheduled by the Department Head consistent with the effective operation of the department and may be rescheduled whenever necessary. ARTICLE 17 17.1 It is the policy of the County to work its employees within the regularly scheduled workweek unless conditions warrant. 17.2 Management may schedule overtime beyond the standard hours when it is in the best interest of the County and is the most practical and economical way of meeting workloads or deadlines. 17.3 Employees may be required to work overtime when requested by management unless excused by management. Employees may volunteer to work overtime and should communicate that interest to their supervisors. Overtime will only be scheduled for those employees fully qualified to perform the work required. In all work units, the County will make reasonable efforts to equalize overtime among employees who are similarly classified, except as addressed in Section 17.4 below. All other factors being the same, seniority may be used as a selection factor. 17.4 For overtime computation, only time worked shall be considered as time worked. Absences from work will not be counted as time worked for overtime computation. Rev. 9/7/ 10 -12- I ARTICLE 18 3 ON-CALL/STANDBY 4 5 On -call duty assignments occur when a supervisor expressly orders that an employee 6 perform a certain function. These assignments are made when a supervisor mandates that 7 an employee be available for work due to an urgent situation during off -duty time. Such 8 assignments will be given to the employees who normally perform the work during 9 normal hours of work. For employees on a standby status, one hour of pay at time and 10 one-half will be paid for each regular workday. Two hours of pay at time and one-half 11 will be paid for each non -work day and holidays. On -call hours shall be in addition to 12 time worked. 13 14 ARTICLE 19 15 16 CALL BACK 17 18 19.1 Call back is work due to an emergency or other urgent situations during off -duty hours. 19 Callback pay shall be paid to employees either called during off duty hours or called back 20 to a work site during off duty hours. This pay shall be as follows: (a) one hour paid for 21 employees called on the phone (or the actual time spent on the phone calls, whichever is 22 greater) during off duty hours when the problem is resolved over the telephone and does 23 not require the employee to report to a job site, or (b) two hours of pay or the actual time 24 worked, whichever is greater, for an employee called back to a work site during off duty 25 hours. This time shall be considered as time worked for computing overtime. The call or 26 call back of any employee requires the prior approval of the department head or designee. 27 28 19.2 The parties agree that when an employee is regularly scheduled to come to a County 29 building in order to open and close the building for a third party is not "call back" as that 30 term is defined in the previous paragraph, but that the employee who is called to work for 31 the purpose will be entitled to a minimum of two (2) hours or actual time worked, 32 whichever is greater, computed from the time the employee arrives at the County 33 building. 34 35 ARTICLE 20 36 37 TEMPORARY ASSIGNMENTS 38 39 20.1 The County may temporarily assign or appoint any employee to perform work, which 40 would normally be done by an employee in another classification, when at the discretion 41 of the County such an assignment, or appointment is necessary. 42 43 20.2 An employee temporarily assigned to perform work outside his normal classification 44 shall suffer no loss of pay should said temporary assignment be to a lower classification. 45 46 20.3 An employee may be assigned to work in a higher classification up to one year, unless 47 otherwise determined by the County Administrator. An employee required to work in a 48 higher classification 30 consecutive working days or less may be required to do so at no 49 increase in pay. If the employee is required to work beyond this period, he or she should Rev. 9/7/10 - 13 - I be given a temporary transfer to the higher classification and be paid the appropriate rate 2 for the higher classification retroactively applied to day one he or she served in such 3 higher classification and every consecutive working day thereafter. At the conclusion of 4 the assignment, pay shall revert to the authorized rate established for his regular position. 5 Any such temporary increase granted shall not affect the employee's eligibility for 6 normal salary advancement. h 8 ARTICLE 21 9 10 PROBATIONARY PERIOD 11 12 21.1 The probationary or "working test" period is an integral part of the hiring and promotion 13 process. It is utilized to closely observe the new employee's work, to secure the most 14 effective adjustment of a new employee to the position, and to reject any employee 15 whose performance does not meet the required work standards. Probationary employees 16 are generally ineligible for employee requested transfers or promotions unless the County 17 Administrator or Division Director determines that it is in the best interest of the County 18 to waive this rule. Probationary employees who are permitted to transfer or promote 19 shall have their new probationary period run concurrent with their existing probationary 20 period. 21 22 21.2 The probationary period shall be nine consecutive months from the employee's first day 23 of work with the County. If the employee has completed the probationary period, the 24 employee shall be placed on regular status. The County reserves the right to extend the 25 probationary period for up to three months. Such a decision shall be made at least two 26 weeks before the end of the initial probationary period, and notice shall be provided to 27 both the employee and the Union representative. 28 29 21.3 Regular status denotes final appointment in a specific County position and classification 30 following successful completion of the probationary period. 31 32 21.4 Newly hired probationary employees may be dismissed at any time at the discretion of 33 the County and are not entitled to the Career Service procedures or payments of sick 34 leave at time of termination. 35 36 21.5 If an employee who is serving a probationary period incurred as a result of a promotion is 37 found to be unqualified to perform the duties of the higher position, a good faith effort 38 will be made to return the employee to the position and status held immediately prior to 39 the promotion. If the employee's former position is filled or otherwise unavailable, the 40 employee may be transferred to a vacant position for which the employee qualifies. If no 41 vacancy exists for which the employee is qualified, the employee will be placed in a lay- 42 off status with recall rights. 43 44 Rev. 9/7/10 - 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 ARTICLE 22 PROMOTIONS — JOB OPENINGS 22.1 In filling all vacancies in the bargaining unit, employees shall meet the qualification standards of education, training, experience, and other requirements for the position to which the promotion is being sought. Standards and qualifications will be established to meet the basic requirements of the position. 22.2 Job openings will be posted on the employee bulletin boards a minimum of seven calendar days. Employees, excluding temporary and all probationary employees, may initiate a written request for transfer/promotion consideration. 22.3 An employee's eligibility for promotion will be determined by the requirements of the new job. In addition, the employee must have both a satisfactory performance record and no disciplinary actions (written warning or greater) during the preceding three-month period. Employees along with external applicants will be considered. All things being equal, and if consistent with affirmative action plans, senior employees shall have preference, but there will be no guarantee of promotion. Current employee candidates for promotion will normally be screened and selected on the basis of attendance and work records, performance appraisals, and job -related qualifications including, in some instances, aptitude tests. Seniority will prevail if two or more candidates are judged to be equally qualified. 22.4 Promoted employees shall receive a 5% raise or the minimum of the new grade, whichever is greater. 22.5 Promoted employees will be placed on "promotion probation" status for a period of three months. 22.6 The County agrees to post management vacancies and will give bargaining unit employees consideration in filling those vacancies. 22.7 The County will notify the Union of every job opening by sending an e-mail to the Business Representative at the time that the job opening is advertised internally. ARTICLE 23 DISCIPLINE 23.1 No employee covered by this Agreement shall be disciplined or discharged without proper cause. All discipline or discharge notices shall be in writing with a copy provided to the employee. Such notices shall contain as complete and precise an explanation as possible for the action being taken. 23.2 The County agrees with the tenets of progressive and corrective discipline; however, the County has the right to review the employee's work history and prior record of disciplinary action when determining the appropriate action to be taken. The County may provide employees with notice of deficiencies and an opportunity to improve. Rev. 9/7/ 10 -15- 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 Notwithstanding the County's embrace of progressive and corrective discipline, the County reserves the right to discipline employees for cause when the County deems it to be appropriate. 23.3 Disciplinary actions or measures may include, subject to the rules of the Board of County Commissioners, any of the following: A. Oral warning B. Written reprimand C. Suspension D Demotion E. Discharge 23.4 All discipline in the form of adverse employment action must be processed exclusively through the grievance -arbitration procedure herein. The Union waives the right of all bargaining unit members to utilize the Career Service Act procedures for any purpose. 23.5 Disciplinary actions older than 5 years shall not be considered for purposes of progressive discipline. ARTICLE 24 GRIEVANCE AND ARBITRATION GRIEVANCE PROCEDURE 24.1 Except when doing so would present an unreasonable risk to the employees' safety, bargaining unit employees will follow all written and verbal orders given by superiors even if such orders are alleged to be in conflict with the Agreement. Compliance with such orders will not prejudice the right to file a grievance within the time limits contained herein, nor shall compliance affect the ultimate resolution of the grievance. 24.2 A "grievance" is a claimed violation of an express provision of this Agreement. Notwithstanding that definition, discipline in the form of an adverse employment action shall be subject to the grievance -arbitration procedure set forth herein. No grievance will or need be entertained or processed unless presented in the manner described herein, and unless filed in a manner provided herein within the time limit prescribed herein. A grievance may be filed by a bargaining unit employee or by the Union (hereinafter the "grievant"). In either case, the procedure to be followed will be the same. The Union and management may mutually agree to waive any step. Any employee covered by this Agreement must use this grievance process and has no right to any other grievance process (i.e., administrative policy, etc.). 24.3 Any grievance defined as a claim reasonably and suitably founded on a violation of the terns and conditions of this Agreement shall systematically follow the grievance procedure as outlined herein. Any grievance filed shall refer to the provision or provisions of the Agreement alleged to have been violated, and shall adequately set forth the facts pertaining to the alleged violation. 24.4 Rules of Grievance Processing: Rev. 9/7/ 10 - 16 - I 2 (A) The time limitations set forth in this Article are the essence of the Agreement. A 3 grievance not advanced to the higher step by the Union or the grievant within the 4 time limit provided shall be deemed permanently withdrawn and as having been 5 settled on the basis for the decision most recently given. Failure on the part of the 6 County's representative to answer within the time limit set forth in any step will 7 entitle the employee to proceed to the next step. The time limit at any stage of the 8 grievance procedure may be extended by written mutual agreement of the parties 9 involved in that step. 10 11 (B) A grievance presented at Step 2 and above shall be dated and signed by the 12 aggrieved employee presenting it. A copy of the grievance must be forwarded to 13 Human Resources by the grievant and/or the Union. The departmental fax 14 machine will be made available for this purpose. A decision rendered shall be 15 written to the aggrieved employee with copy to the Union and shall be dated and 16 signed by the County's representative at that step. 17 18 (C) When a written grievance is presented; the County's representative shall return a 19 dated and signed copy of it at that particular step. 20 21 (D) When a grievance is reduced to writing there shall be set forth: 22 23 1. A complete statement of the grievance and the facts upon which it is 24 based; 25 2. The section or sections of this Agreement claimed to have been violated; 26 3. Any witnesses to the event or occurrence; and 27 4. The remedy or correction requested. 28 29 (F) In the settlement of any grievance resulting in retroactive adjustment, such 30 adjustment shall be limited to ten calendar days prior to the date of the filing of 31 the grievance. 32 33 STEPS FOR GRIEVANCE PROCESSING 34 35 Step 1: In the event a grievance arises, the employee must present a written grievance using the 36 form attached to this Agreement as Attachment B to his immediate supervisor within tee five 37 working days after the employee had knowledge of the event or occurrence giving rise to the 38 grievance. The aggrieved employee may request a representative of the Union to be present. 39 Discussions will be informal for the purpose of settling differences in the simplest and most 40 direct manner. The supervisor will consult with the department head. The department head shall 41 reach a decision and communicate it in writing to the aggrieved employee with a copy to the 42 Union within ten working days from the date the grievance was presented to the supervisor. 43 44 Step 2: If the grievance is not settled in the first step, the aggrieved employee, within five 45 working days, shall forward the written grievance to the division director. The division director 46 shall meet with the aggrieved employee, who may be accompanied by a Union steward and the 47 Union chief steward. Within ten working days after the receipt of the grievance, unless such 48 time is mutually extended in writing and the grievance is not resolved, the grievance may then be 49 forwarded to Step 3. Rev. 9/7/10 - 17 - 2 Step 3: If the grievance is not settled in Step 2, the Union has ten (10) working days from receipt 3 of the Step 2 answer to submit a written appeal to the County Administrator or his designated 4 representative. Within ten (10) working days thereafter, a meeting shall be held between the 5 County Administrator (or designee), the Union Agent, the Shop Steward, and the grievant. The 6 County Administrator shall provide his written answer within ten (10) working days following 7 such meeting. The parties may be mutual written agreement extend the above timelines without 8 loss of rights under this Article. 9 to Step 4: In the event that the grievance is not settled boarding Step 3, either party may submit the 11 grievance to binding arbitration within ten (10) working days (or to a time period otherwise 12 mutually agreed to by the Union and County) of the written response of the resolution board. A 13 panel of seven (7) arbitrators will be requested from the Federal Mediation and Conciliation 14 Service. The parties shall alternately strike names from the list until an arbitrator is selected. 15 For the first arbitration following the implementation of this Agreement, the County shall strike 16 the first name. Thereafter, the Union shall be required to strike the first name in the next 17 arbitration case. For subsequent arbitrations, the parties shall continue to alternate. Both parties 18 shall have the right to reject one panel, and request another from which the arbitrators must be 19 chosen using the above -prescribed procedure. Hearings before the arbitrators shall be conducted 20 in accordance with the rules of the Federal Mediation and Conciliation Service. The Union and 21 the County shall each pay '/z of the Arbitrator's fees and expenses. 22 23 24.5 As promptly as possible after the arbitrator has been selected, the arbitrator shall conduct 24 a hearing between the parties and consider the grievance. The decision of the arbitrator 25 will be served upon the Union and the County in writing. It shall be the obligation of the 26 arbitrator to issue his/her decision within 60 calendar days after the close of the hearing 27 to include receipt of post -hearing briefs. Any party desiring a transcript of the hearing 28 shall bear the cost of such transcript unless the parties mutually agree to share the cost. 29 Each party shall bear the expense of its own witnesses and of its own representatives for 30 purposes of the arbitration hearing. 31 32 24.6 The jurisdiction and authority of the arbitrator and his opinion and award shall be 33 confined exclusively to the interpretation and/or application of the express provision(s) of 34 this Agreement. He shall have no authority to add to, detract from, alter, modify, amend 35 or modify any provision of this Agreement; or to establish or alter any wage rate or wage 36 structure. No liability shall be assessed against the County for a date prior to the date of 37 when the grievance is submitted in writing, or, in disciplinary cases, from the date of the 38 discipline or discharge. 39 40 The arbitrator shall not hear or decide more than one (1) grievance without the mutual 41 consent of the County and the Union. The written award of the arbitrator on the merits of 42 any grievance adjudicated within his jurisdiction and authority shall be final and binding 43 on the aggrieved employee, the Union and the County, provided that either party shall be 44 entitled to seek review of the arbitrator's decision as provided by law. With respect to 45 arbitration involving the layoff, discipline or discharge of employees, the arbitrator shall 46 have the authority to order the payment of back wages and benefits the employee would 47 otherwise have received but for his discipline or discharge (less compensation, including 48 unemployment compensation payments and other compensation earned elsewhere during 49 the period attributable to the layoff, discipline or discharge in issue, and less any amounts Rev. 9/7/10 - 18 - I caused by the grievant's failure to mitigate his or her damages.) The arbitrator shall have 2 no authority to award compensatory or punitive damages or attorney's fees. 3 4 24.7 The arbitrator may not issue declaratory opinions and shall be confined exclusively to the 5 question, which is presented, which question must be actual and existing. 6 7 24.8 Nothing in this Agreement shall prohibit the presence of a Union representative at any 8 steps of the grievance procedure. 9 24.9 No claimed violation of any federal statute, state or local law, rule or regulation shall be 10 subject to the grievance -arbitration procedure. 11 12 ARTICLE 25 13 14 SEPARATIONS 15 16 25.1 The effective date of separation shall be the last day on which the employee is present for 17 duty unless otherwise specified herein. 18 19 25.2 Resignation is defined as an action whereby an employee voluntarily leaves County 20 employment. An employee with no pending disciplinary action wishing to leave the 21 County in good standing shall file with the County a written resignation, stating the 22 effective date and reasons for leaving. Such notice must be given at least two weeks 23 prior to the date of separation. Employees who are absent from work for three 24 consecutive workdays without being excused or giving proper notice of their absence will 25 be considered as having voluntarily quit. 26 27 25.3 Retirement is defined as a voluntary or involuntary procedure whereby an employee 28 separates from County employment for reasons of length of service or disability. The 29 Florida Retirement System shall govern all retirement regulations and benefits. Neither 30 the employee nor the Union may use the grievance -arbitration procedures outlined in 31 Article 24 to address complaints concerning the Florida Retirement System. 32 33 25.4 Termination of employment shall be effective as of the date of death. All County 34 compensation and County benefits due to the employee as of the effective date of death 35 shall be paid to the beneficiary, surviving spouse, or the estate of the employee, as 36 determined by law or by executed forms in the employee's personnel file. 37 38 25.5 If a layoff does occur all temporary employees and newly hired probationary employees 39 within affected divisions will be terminated first. The only exception would be if the 40 temporary or newly hired probationary employee has a particular skill required to 41 perform certain duties and no one else employed by the County is qualified. Permanent 42 employees are to be laid off based on their length of continuous service, provided that the 43 employees who are retained have the demonstrated ability and fitness to perform the 44 available work. Laid -off permanent employees shall be placed in open positions for 45 which they are qualified. 46 47 25.6 If an employee is laid off, the employee will be compensated for his sick and vacation as 48 if he were voluntarily quitting. Employees eligible for sick leave payment per Article Rev. 9/7/ 10 - 19 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 28.4 shall have the option of leaving the sick leave on account for up to one year. A laid - off employee shall be eligible for conversion of employee health care benefits at the employee's expense. Laid -off employees remain eligible for recall into positions previously held with the County or for which they are qualified for a period of two years from the layoff date, except this provision shall not apply if the employee accepts another position within the County within this time period. Any employee so recalled shall be subject to passing a typical pre -employment screening. No continuous service benefits of any kind shall accrue during the layoff period. The County will notify said laid off employee in writing via email of positions for which he/she may be qualified, with a copy to Union, for a period of two years following the layoff date 25.7 A discharge is the involuntary separation of an employee from County employment. Employees discharged for disciplinary reasons shall not generally be eligible for re- employment and shall lose all seniority and reinstatement privileges. The County will notify the Union steward upon the discharge of an employee in the bargaining unit but failure to give such notice shall not affect the validity of the discharge. 25.8 The final pay for terminated employees will be prepared for distribution on the next normally scheduled pay date following the termination date. It can be mailed to the last address designated by the employee. Final pay will be paid on a normally scheduled pay period. 25.9 At the time of separation and prior to receiving final monies due, all records, books, assets, uniforms, keys, tools, and other items of County property in the employee's custody shall be returned to the department. 25.10 Any outstanding debts incurred by an employee, which are due the County, shall be deducted from the employee's final paycheck and/or termination leave pay. ARTICLE 26 INSURANCE 26.1 Bargaining unit employees will be eligible for coverage under the County's insurance plans for all other similarly -situated personnel. The County reserves the right to change insurance carriers or benefits or both, and the Union hereby expressly waives any right to bargain over such a decision; provided, however, that the County will bargain with the Union over the effects of any change in insurance carriers or benefits, if the Union requests that such bargaining occurs. ARTICLE 27 LEAVES OF ABSENCE 27.1 Jury Duty and Court Leave. A. A full-time employee who is summoned to jury duty by a city, the County (Monroe), the State of Florida, or the Federal Government or subpoenaed to appear in court as a witness in a criminal or civil action arising from his or her county employment shall be Rev. 9/7/ 10 -20- I granted time off with pay for the time actually spent on jury duty or in the court 2 appearance. Fees paid by the court will be retained by the employee unless otherwise 3 determined by the County Administrator. As conditions precedent to receiving time off 4 with pay for jury duty or court appearance of the aforesaid nature, the employee must: 5 6 (a.) Notify his/her Department Head of the summons or subpoena 7 immediately upon receipt produce the summons or subpoena to his/her 8 Department Head upon request, and provide the Department Head with an 9 estimate of the duration of the absence; 10 11 (b.) Report to the Department Head immediately upon the conclusion or 12 continuance of such jury duty or court appearance; 13 14 (c.) Report status of jury duty to supervisor or designee on a daily basis. 15 16 B. Any employee on jury duty as specified above, and who is released or excused from 17 jury duty during normal working hours, will immediately contact his or her supervisor in 18 order to determine whether the employee will be required to report back to work. 19 Employees who work a 24 hour shift, will contact their Department Head (or designee) 20 when released from jury duty. If the Department Head (or designee) determines that the 21 employee could not effectively complete his or her work shift, the employee may be 22 granted time off with pay for the remainder of the shift. 23 24 C. The County, in its discretion, may reschedule the working hours and days of work of 25 an employee employed on other than a full-time basis who is summoned to jury duty or 26 subpoenaed to appear in court as a witness by a city, the County (Monroe), the State of 27 Florida, or the Federal Government in a criminal or civil action arising from his or her 28 county employment. If, in the County's judgment, it is not feasible or practical to 29 schedule the employee's hours of work around such, the County shall grant the employee 30 time off with pay for the time actually spent on jury duty or in the court appearance. As 31 conditions precedent to receiving time off with pay for jury duty or court appearance of 32 the aforesaid nature, the employee must abide by the provisions contained above in 33 Article 27.1, (a), (b) and (c). 34 35 D. If any employee is subpoenaed as a witness other than in the specific circumstances 36 described above, the County will grant the employee leave without pay to the extent that 37 the Department Head so approves. 38 39 E. Notwithstanding any of the provisions of Article 27.1-A above, no employee shall 40 receive pay from the County where the employee is a plaintiff, claimant, or witness 41 against the County in a matter contrary to the County's interests. 42 43 F. Any employee subpoenaed or otherwise requested to be a participant in any legal 44 matter related to County business must inform the County Attorney's office as soon as 45 possible after receiving said notification. 46 47 Rev. 9/7/10 - 21 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 27.2 27.3 Military Leave An employee may request military leave to serve on active duty in an emergency or required annual duty, and shall be compensated in accordance with state law, and federal law. Any claimed violation of this policy must be resolved exclusively through administrative judicial procedures, and not through the grievance -arbitration procedures set forth herein. Family Medical Leave Act The County's policy is contained at Section 8.05 of the County's Personnel Policies and Procedures. FMLA is governed by applicable federal law. Any claimed violation of this policy must be resolved exclusively through administrative judicial procedures, and not through the grievance -arbitration procedures set forth herein. 27.4 Bereavement Leave All employees covered under this policy shall be granted up to two working days off with pay in order to attend a funeral of a member of the employee's immediate family. The immediate family shall be construed to mean one of the following: Spouse, parent, son, daughter, sister, brother, domestic partner, legal guardian, grandparent or in-laws. Additional time off (over and above the two working days herein provided) may be approved by the Department Head, and charged to sick or annual leave. Additionally, the County may require proof of death of a family member before making payment for leave. ARTICLE 28 PAID SICK LEAVE 28.1 SICK LEAVE A. ELIGIBILITY All salaried employees with regular status working 20 hours or more per week shall have the privilege of accruing sick leave in accordance with these policies. Employees shall not be eligible to use sick leave until they have been in the County service for 90 days, unless recommended by the Department Head and approved by the Division Director. Verification of illness by a physician may be required. B. ACCRUAL OF SICK LEAVE Rev. 9/7/10 All regular, full-time employees will accrue 4 hours sick leave per pay period. There will be no limit of the amount of sick leave that can be accrued. Sick leave for employees working less than 40 hours per week, but at least twenty (20) hours per week will be prorated according to the hours worked. -22- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 When there has been a break in service of 48 hours or more, the employee upon reinstatement or re-employment will begin accruing sick leave as a new employee. Employees who are on leave without pay for more than 8 hours during a pay period will not accrue sick leave for that pay period. C. USE OF SICK LEAVE 1. Sick leave shall be used only with the approval of the applicable Department Head, Division Director or County Administrator and shall not be authorized prior to the time it is earned and credited to the employee except in cases of prearranged medical appointments, surgery or other health -related matters. 2. Sick leave shall be authorized only in the event of: (a.) The employee's personal illness, injury or exposure to a contagious disease which would endanger others. (b.) Illness or injury of a member of the immediate family. (see definition of immediate family.) (c.) The employee's personal appointments with a practitioner when it is not possible to arrange such appointments for off -duty hours, but not to exceed the extent of time required to complete such appointments. (d.) Prearranged surgery or other health -related matters. D. Monroe County has established a Sick Leave Pool for eligible full-time employees designed to aid the employee suffering from an extended illness or injury (See Administrative Instruction 4702 for rules and enrollment procedures). Rev. 9/7/ 10 -23- 28.2 MEDICAL JUSTIFICATION 3 A. Sick leave is a privilege, and not a benefit. In fact, use of sick time actually causes a 4 hardship on the County. The County must, therefore, ensure that employees utilizing sick 5 leave are complying with The Monroe County Personnel Policies and Procedures. 6 7 Employees must meet the following conditions in order to be granted sick leave with pay: 8 9 (1) Notify his/her immediate Supervisor as soon as the employee learns that 10 he/she will be unable to report to work in accordance with individual department 11 policy. The employee shall call in to his/her immediate Supervisor at least one 12 (1) time on each consecutive shift thereafter, that the employee will miss work 13 because of sick leave. 14 15 (2) File a written report (after returning to work) explaining the nature of the 16 illness when required, by her Supervisor or Department Head. 17 18 (3) Permit medical examination, nursing visit or any County inquiry (telephone 19 call, visit to the employee's house, etc.) deemed appropriate by the County to 20 document the illness of the employee or family member. 21 22 The Department Head is responsible for following up on sick leave use and for ensuring 23 that there is no sick leave abuse. The Department Head may require any employee to 24 bring in a note from his or her personal physician for absences of three (3) consecutive 25 working days or more. However, if a Department Head reasonably suspects that an 26 employee is abusing sick leave, said Department Head may require that any use of sick 27 leave by the employee for herself or family member be justified by a note from a 28 physician. Further, in the event that a Department Head is unsatisfied with the initial 29 doctor's note, he may require the employee or family member to be examined by a 30 County - designated physician at the County's expense. 31 32 B. If it is determined that the employee is unfit to continue working, the Department 33 Head may require the employee to use any part of his accrued sick leave, compensatory 34 time or annual leave and may thereafter require the employee to take such leave without 35 pay as is medically determined sufficient to restore him to normal health, however, this 36 will in no way prevent the County from separating him from employment if the absence 37 would be of such duration as to pose a hardship on the operations of the Department. 38 39 C. The Department Head may require, at any time, an employee to present medical 40 evidence that he is physically or mentally fit to work and/or the Department Head may 41 require an employee to be examined by a County -designated physician or psychiatrist, at 42 the County's expense. 43 44 D. If the employee's illness is covered by FMLA, the County's FMLA policy will 45 govern entitlement to leave and the terms and conditions of that leave. 46 47 Rev. 9/7/10 - 24 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 28.3 NOTIFICATION OF ABSENCE If absent for three consecutive work days without reporting to the Supervisor a reason sufficient to justify the absence, the employee may be removed from the payroll as having voluntarily resigned without notice. The Supervisor is to notify the Department Head. Any unauthorized absence may be cause for disciplinary action, up to and including terminations 28.4 PAYMENT OF UNUSED SICK LEAVE A. An employee who terminates with less than five (5) years continuous service shall not be paid for any unused sick leave credits. B. Employees with varying years of continuous service shall, upon separation, from the County in good standing, death or retirement, receive incentive sick leave pay as follows: 5 to 10 years of service - 1/4 of all accrued sick leave, with a maximum of 30 days. 10 to 15 years of service - 1/2 of all accrued sick leave, with a maximum of 90 days. 15 years or more - 1/2 of all accrued sick leave, with a maximum of 120 days. C. The payments made as terminal pay for unused sick leave, whether paid as salary or otherwise, shall not be used in the calculation of average final compensation for retirement. D. Employees who leave the County service without proper notice or who are terminated for just cause may be denied payment of accrued sick leave. ARTICLE 29 HOLIDAYS 29.1 OFFICIAL HOLIDAYS The following are holidays which shall be observed by all County offices in which functions can be discontinued without adversely affecting required services to the public: Rev. 9/7/10 New Year's Day Labor Day Presidents Day Columbus Day Martin Luther King's Birthday Veterans Day Good Friday Thanksgiving Day Memorial Day Thanksgiving Friday Independence Day Christmas Day -25- I In addition to the above -designated holidays, the Board of Commissioners, in its sole 2 discretion, may grant other special holidays during the course of a year to some, or all, 3 County employees. 4 5 29.2 ELIGIBILITY 7 All salaried employees on the active payroll on the date of the holiday shall be eligible 8 for holiday pay at their regular rate of pay. Employees must be working or on approved 9 leave with pay the entire day before and the day after a holiday to be compensated for 10 said holiday. 11 12 29.3 WORK DURING HOLIDAYS 13 14 Each employee shall observe all holidays designated in this Section, provided that the 15 work load of the department is, in the discretion of the County Administrator, such that 16 the employee's work load cannot be discontinued without causing a hardship to the 17 County. 18 19 In the event that the work load in any department does not permit the observance of any 20 designated holiday, all employees required to work on said designated holiday, or if 21 holiday falls on employees designated day off, may be granted another day's leave in lieu 22 of the holiday or paid for the work performed on the holiday. If employee wishes to 23 substitute a holiday, it will be scheduled in the manner as annual leave. 24 25 29.4 HOLIDAYS FALLING ON WEEKENDS 26 27 Unless otherwise specified by the Board of County Commissioners - when a holiday falls 28 on a Saturday, the preceding Friday shall be observed as a holiday - when a holiday falls 29 on a Sunday, the following Monday shall be observed as a holiday. 30 31 Some County facilities are open on Saturdays and Sundays. When a holiday falls on a 32 Saturday or Sunday, those facilities will observe the holiday on the actual holiday in lieu 33 of the normally scheduled County Holiday. 34 35 29.5 HOLIDAY DURING PAID LEAVE 36 37 Employees on annual or sick leave during periods when designated holidays occur shall 38 not have the day of the holiday charged against their accrued leave. 39 40 29.6 OBSERVANCE OF RELIGIOUS HOLIDAYS 41 42 Employees who choose to observe other "holidays" for religious or other reasons must do 43 so by utilizing annual leave pursuant to Article 30. 44 45 29.7 ADDITIONAL DAYS OFF WITH PAY 46 47 Members of the bargaining_ unit may receive additional days off with gay (not holida)s) if 48 ayuroved by the Board of County Commissioners, subject to rules set forth by the Count, 49 Administrator. All such days ofE if Vanted. must be taken in increments of whole days Rev. 9/7/10 - 26 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 ARTICLE 30 ANNUAL LEAVE A. ELIGIBILITY All salaried employees with regular status working 20 hours or more per week shall earn and accrue annual leave with pay. B. ACCRUAL Rev. 9/7/10 For current employees and employees hired on or prior to September 30, 1999, Annual leave for regular, employees shall be earned in accordance with the following table: Years of Continuous Service 1 through 3 years 4 through 10 years Hours of Leave Earned During Each Calendar Month 40 HPW 4 hours per bi-weekly pay period (13 working days per year) 5 hours per bi-weekly pay period (16 1 /4 working days per year) 11 through 15 years 6 hours per bi-weekly pay period (19 1/2 working days per year) 16 through termination of employment 7 hours per bi-weekly pay period (22 3/4 working days per year) Hours of Leave Earned During Each Calendar Month 37'h HPW 3.75 hours per bi-weekly pay period (13 working days per year) 4.75 hours per bi-weekly pay period (16.5 working days per year) 5.75 hours per bi-weekly pay period (19.9 working days per year) 6.75 hours per bi weekly pay period (23.4 working days per year) Monroe County currently has a bi-weekly pay period system commencing at 12:00 a.m. Sunday, ending two Saturdays later at 11:59 p.m. There are 26 pay periods per year. -27- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 C. Rev. 9/7/ 10 For employees who are hired on October 1, 1999, or after Annual leave for regular, full-time employees with a work week of 40 hours per week shall be earned in accordance with the following table: Years of Continuous Hours of Leave Earned Service During Each Calendar Month 1 through 5 years 4 hours per bi-weekly pay period (13 working days per year) 6 through 15 years 5 hours per bi-weekly pay period (16 1/4 working days per year) 16 through termination of employment 6 hours per bi-weekly pay period (19 1 /2 working days per year) Monroe County currently has a bi-weekly pay period system commencing at 12:00 a.m. Sunday, ending two Saturdays later at 11:59 p.m. There are 26 pay periods per year. Annual leave for employees working less than 40 hours per week, but more than 20 hours per week will be prorated according to the hours worked. When there has been a break in employment of 48 hours or more, the employee, upon reinstatement or re-employment, will begin earning annual leave as a new employee. Employees who are on leave without pay status for more than 8 hours during a pay period will not accrue annual leave for that pay period. 1. Annual leave may be used on a payday -to -payday basis as it is earned according to scheduling requirements and may be accumulated up to 40 working days. Any time earned in excess of this amount will be handled in accordance with the Monroe County Personnel Policies and Procedures. 2. All annual leave must be approved in advance by the applicable Department Head, Division Director and/or the County Administrator depending on the position held by the requesting employee. The employee shall fill out his Leave Request Form and submit it to the Department Head, who has the right to deny an employee's request for annual leave, if granting such leave at that time would be detrimental to County operations. Upon such denial, the employee may request the leave at another time. -28- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 The Department Head is responsible for verifying that the employee does have sufficient accrued leave to cover the period of absence, and should return the leave request to the employee indicating approval or denial, within seven (7) days of receipt of the request, unless a valid reason is given to the employee for the delay. D. ANNUAL LEAVE PAY UPON SEPARATION Payment of annual leave shall be based on the employee's regular rate of pay and terms of separation. E. RESTRICTIONS Annual leave may be used for any purpose; however, it is a privilege incident to County service and is not a right, and may only be used by the employee if taken prior to termination for cause or in accordance with these policies, with the following restrictions: 1. Annual leave may not be taken until accrued in accordance with these rules. 2. Employees will not accrue annual leave during a leave of absence without pay, a suspension or when the employee is otherwise in a non - paid status. 3. Article 25.2 -Resignations. 4. Employees who leave the County service without proper notice or who are terminated for just cause may be denied payment of accrued annual leave. 5. An employee who leaves the County and wishes to receive payment for annual leave must sign a waiver and general release of any and all claims against the County and its official, managers, supervisors, employees and insurers to receive payment of annual leave. ARTICLE 31 UNIFORMS. TOOLS AND EQUIPMENT 31.1 For employees required to wear a uniform, the County will furnish two sets of shirts and pants for each day the employee is regularly scheduled to work in a workweek, plus one additional uniform, i.e., five-day employees will have 11 sets and four -day employees will have 9 sets, and all on -call employees shall receive an additional 2 sets, not to exceed 15 sets. Bargaining unit employees shall be given their choice of long or short pants, except for those positions for which the County makes the determination that long pants are required. The determination to require long pants will not be arbitrarily made. Such Rev. 9/7/ 10 -29- I uniforms are not to be worn except while employees are on the job and while traveling to 2 and from the job. 3 4 31.2 Tools and equipment that are normally supplied by the County will be used properly and 5 carefully by employees who require them in their work. It is the responsibility of the 6 employee to use and secure such tools and equipment in such a manner as to minimize 7 the potential for loss or theft. 9 31.3 Tools and equipment provided by the County will be replaced by the County if they are 10 stolen or broken during normal use and provided proper care and prescribed security 11 measures have been followed and loss or breakage is not due to the employee's 12 negligence or abuse. Loss or breakage due to employee's negligence or abuse subject to 13 discipline 14 15 ARTICLE 32 16 17 REMUNERATION 18 19 32.1 All current bargaining unit employees covered by this Agreement will receive 0% cost -of 20 living -allowance and no merit increases during the term of this Agreement. 21 22 32.2 Monroe County has established a program to recognize County employees who havebeen 23 in the County Service for Five, Ten, Fifteen, Twenty, Twenty-five and Thirty years. 24 Grant and part-time employees will be eligible for the years -of -service program. 25 26 At the employee's anniversary date, or as soon thereafter as is feasible, the 27 Department must cause a letter to be placed in the employee's personnel file noting 28 the years of service and must deliver the following, in a lump sum payment, to the 29 employee: 30 a — For 5 years of service, a decorative pin and a $100.00 award; 31 b — For 10 years of service, a decorative pin and a $175.00 award and recognition 32 at the BOCC meeting; 33 c — For 15 years of service, a decorative pin and a $200.00 award and recognition 34 at the BOCC meeting; 35 d — For 20 years of service, a decorative pin and a $350.00 award and recognition 36 at the BOCC meeting; 37 e — For 25 years of service, a decorative pin and a $500.00 award and recognition 38 at the BOCC meeting; 39 e — For 30 years of service, a decorative pin and a $1,000.00 award and recognition 40 at the BOCC meeting; 41 42 32.3 If, during the term of this agreement, the County non -union employees receive across 43 the -board cost of living allowances and/or merit increases then all eligible emp gM 44 within this bargaining unit covered by this collective bargaining agreement will 45 immediately receive the same increase without the need for fu ther bargaining. 46 Rev. 9/7/10 -30- I ARTICLE 33 2 3 ENTIRE AGREEMENT 4 5 33.1 The parties acknowledge that during the negotiations, which resulted in this Agreement, 6 each had the unlimited right to make demands and proposals with respect to any subject or 7 matter not removed by law from the area of collective bargaining. They, therefore, each 8 voluntarily and unqualifiedly waive the right for the term of this Agreement to bargain 9 collectively with respect to any matter referred to or covered in this Agreement, or with respect 10 to any subject or matter not specifically referred to or covered by this Agreement. 11 33.2 This Agreement represents the entire agreement between the parties and no other 12 Agreements or practices are binding upon either party hereto with respect to wages, hours or 13 working conditions of the employees covered hereby. The County shall not be obligated to 14 continue any benefits or employee practices which it has given or engaged in prior to the 15 execution of this Agreement unless such benefits or practices are specifically set forth in this 16 Agreement, and past practices of the employer will not be considered in interpreting this 17 Agreement. 18 33.3 The parties also agree that the County may unilaterally make changes in the terms and 19 conditions not covered in this Agreement without having to bargain over any such decision or its 20 effects. This Agreement expressly permits the County's right to make such changes. 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 ARTICLE 34 PRINTING AGREEMENT 34.1 This Agreement shall be printed within a reasonable time by the County. The County shall provide three originals of the contract to the Union. ARTICLE 35 SAVINGS CLAUSE If any article, section, or provision of this Agreement should be found invalid, illegal or not enforceable by reason of any existing or subsequently enacted legislation or by judicial authority, all other articles and sections of this Agreement shall remain in full force and effect for the duration of this Agreement. If such action occurs, the County and the Union shall meet within thirty days for the purpose of negotiating a mutually satisfactory replacement for such provision. Rev. 9/7/10 - 31 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 ARTICLE 36 DURATION OF CONTRACT 36.1 After ratification by the parties, this Agreement shall be effective as of October 1, 200910• and shall remain in full force and effect until midnight, September 30, 20103. BOARD OF COUNTY COMMISSIONERS MONROE COUNTY, FLORIDA By Chairman Date: Attest: County Administrator Date: By: Clerk Date: MONROE COUNTY ATTORNEY A j'ROV D AS�0 0Ro YNTHIA L. HALL ASSIS ANT BOUNTY ATTORNEY Date % - &I 0 v Rev. 9/7/ 10 -32- TEAMSTERS LOCAL NO.769 By President Date: M. Date: Business Representative Attachment "A" BULLETIN BOARD LOCATIONS PUBLIC WORKS STOP 09 (MM 5) DETENTION FACILITY 5501 COLLEGE RD KEY WEST, FL 33040 AIRPORTS STOP 05 KEY WEST 3491 SOUTH ROOSEVELT BLV. KEY WEST, FL 33040 COURTHOUSE MM 0 STOP Be 500 WHITEHEAD STREET KEY WEST, FL 33040 ROADS & BRIDGES TRAILER STOP 04 (by Airport) KEY WEST 3563 SOUTH ROOSEVELT BLV. KEY WEST, FL 33040 FACILITIES MAINTENANCE (by Airport) STOP 04 KEY WEST 3583 SOUTH ROOSEVELT BLV. KEY WEST, FL 33040 TRANSFER STATION STOP 010 CUDJOE MM 21 112 BUMP ROAD CUDJOE KEY, FL 33042 PUBLIC WORKS STOP 016 MARATHON MM 49 10600 AVIATION BLV. MARATHON FL 33050 PUBLIC WORKS STOP 019 PLANTATION KEY MM 88112 88770 OVERSEAS HWY. TAVERNIER FL. 33070 TRANSFER STATION STOP 024 KEY LARGO MM 107 11180 COUNTY ROAD 905 N. KEY LARGO, FL. 33037 AIRPORT MARATHON MM 49 9400 OVERSEAS HWY MARATHON, FL 33050 STOP 015 TRANSFER STATION STOP 017 LONG KEY MM68 LONG KEY, FL 33001 CARD SOUND TOLL FACILITY STOP 025 58070 CARD SOUND ROAD MM107 KEY LARGO, FL. 33037 MURRAY NELSON CENTER STOP 026 102050 OVERSEAS HWY MM 102 KEY LARGO, FL. 33037 Rev. 9/7/10 - 33 - Attachment B GRIEVANCE FORM TEAMSTERS LOCAL UNION 769 8000 Orange Ave - #107 12365 W. Dixie Hwy. 3400 43rd Ave. - Suite 3 Orlando, FL 32932 Miami, FL 33161 Vero Beach, FL 32960 Grievant's Name Complete Address (Include Zip Code) Shift Work Phone Job Title Home Phone Employer Employer Manager 1 Grievant's Statement of Grievance; Describe in detail the action giving rise to the complaint. Specify names, dates, classification, place and site of violation, time,etc. 2 Specify the Article(s) of the agreement which is/are violated. 3 What is the remedy and/or relief sought? I hereby authorize the Teamsters Local Union 769 to act for me in the disposition and settling of this grievance. Date Grievant's Signature Date Steward Signature -34- DECISION & APPEAL OF GRIEVANCE Decision of Manager Date of Decision Signature of Union Steward Grievance Settled: YES; Employer's Signature Z03 Case Appealed to: Date Case Appealed by: Date Decision of Appeal: Signature of Deciding Employer Officer. Signature Union Representative: Grievance Settled: Case Filed for Arbitration By: YES: NO: YES: NO: —35— Title: Date Date Title Date 1 2 3 Attachment C BTATH or FLoRim PUBLIC MWWLOYS86 RBLATIONs CONMIssION TZMBTMS LOCAL UNION NO. 769 + AFFILIATED WXTR TB8 3NTHRNATIONALt BROTHZFZDOD OF TSAMSTMW , + C88UFF8DR8, WARSSOUBXM AND BBLPERs OF ADOWCA, + i Petitioner, i Case Now. RC-93-063 i RC-93-064 V. + RC-93-063 s UMMOR COUATr BOARD OF COMJTr i Of MVW CommasIOMR I _ i OF BZCLUBIVf ntsr�n i mm Respondent. _ Stanton R. Orr, Miami, attorney for petitioner. John D. Grande and Donna M. DiChiara, Kiami, attorneys for respondent. A secret ballot election was Conducted march 71, 1994, in the following units i All full-time aid regular part-time emg,loyess awployed by the Kontos County Board of Comity Commissioners in the following classifications+ airport maintenance technician, airport rescue firefighter, airport security guard supervisor, animal Control officer, animal tender, bridge tender, bridge tender lead worker, building maintenance technician, carpenter, carpenter fore- man, Commmicationg assistant, ociaszmi_ cations technician, Crew chief, custo- dian, custodian foremen, dispataber, electrical/slactronic technician, also_ triaal maiatsnence technician, electri- cian, electrician foreman, =a support services manager, RW/Driver, equipment operator, equipment operator - roads and bridges, uquipmsnt operator/maintenaaas, heavy equipment operator, s­!t_tGnftn a mechanic - facilities maiatenaacs, teaance mechanic - roads, maintenanccee/- toll collector, mintecancs worker I facilities, maintenance worker i - L roads, maintenance worker II, mason, Waster plumber, mechanic I - fleet /0,5-0 Rev. 9/7/ 10 —3 6 — RC-93-063 RC-93-064 "R '^^ RC-93-065'meRAwsmJos• - ant. Moahanic III - fleet .. •, ,.. maaagameat, mechanic iI-peavironmaatll;1: . •.�maaa3emteIIt, mechanic III !+ env3ronmeatiaf,t. management, o$srator, pa�i and body*•,►: „,am mechanic i, paint and body machania i.Z Painter' painter foremanParamedia,' , �iPark attendant, plumber, plumber, lumber 8dhdr-MaU% sac, resident park att4uutant, rC W $VIA& of striper, roofer, security guard - pq„_ sv - airport, seanrity guard - aorrecti, ±� facility, saaurLty 9uara'i�` ogrract 4 foreman, sanior aoam�oaicatioas te�sA qrt aien, services manager - fleet went, manage- 88rvic&M technician, -shift �w so sl in 0 taWairport rescue Survey chhiief, traffic sign to11 collector, p�tY coordinator, * transportat:ia'm driver, ;• -Jr truck driver, and oreighmaster: - .,+w k r All temporary ®ployses, grant -.•employees, supervisors, and all other eloyees of the Monroe County Board of Cmpounty commissioners. Ths election results are as follower 1. AWrozimate number of eligible voters 2• void ballots -199 3• Votes cast for Petitioner -,--- - 4. Votes cast against participatingorgnization --�- 3 • Valid votes counted 6. Challenged ballots 1A1 7- Valid votes counted pins *hail -•--�. 8• Challenges are mot sufficient to affect lthe ' results of the election. The Camaisaiam VRitMW the rsxVlts of the election aaa- duatad Mhrah 22, 1994. Petitioner (0R,-86-047) received d sajority o! the Valid vote■ pins Challenged ballots. Pursuamt to sec447.307(3)(b), Hlorida Statutes, the the Petitioner as the rrada stet ����ticn p�eee in the unit described �ntn - is issged to the Pat itiongV. This order may by appealed to the o! appeal. 8 ngpics of appeal must be oppaopri tq t* q . court and the diatriat *Dort of appeal w3t1 *� �' n OOwds,ion of this order. Accept in oases o! Oirty days fix= the date 1nft-ROY, the cWWt; MIUZ Rev. 9/7/ 10 -3 7 I i 4 5 RC-93-063 RC-93-064 RC-93-065 require a filing fee and the Commission will require payment for preparing•tbp record on.jW"I. Further explanation of the right to appeal:; a -provided in sections 120.68 and 447.504, Florida Statutma, and,.the Florida Rules of appellate Prod. Altii Lively, a notion for reconsideration may be filed. The motion �}t be received by the Commission within fifteen days from the date of this order. The notion shall state the parti- cular points of fact or law allegedly overlooked or misappre- hended by 1t„Ccmmiaeicn,,end absll not reargue the merits of the order. Forpr8urther aspiaation, refer to Florida Administrative Code Rule 3QItr15.005. It is io ordered: ` EOTM, 9bairman, SLOAN and APTROm1T, Commissioners, concur. I 8RRMY C88TM that this tjoc t was filed and a copy served on each party an , 1994. SYt Park /elm .'mil... slid 6. , • .: ,N :: - 1 �+ +• .:y A., raff . Y _:s''!- •194a 2 LSE'=.%o: _ :o .lzu .� dO.ts�sli, O�.s.'t =t ,..• .•R c = � s4 fs E;, d 8:= iji�ii a '' •• � - - «ol 4.mis0'S a+ti Q6. �:..v,• �wa'i �•+• :' ti + s�+. " t � r Y �d. t . ; JAf' el& AIMI XV+`� +j'tr ^_.Fdr At. :t9s:¢e,i UAW a-12(02 ae � � .r{r •t � . Rev. 9/7/ 10 —38— CURRENT CONTRACT BETWEEN MONROE COUNTY AND TEAMSTERS LOCAL UNION NO.70 TABLE OF CONTENTS Article 1 Recognition Article 2 Intent and Purpose Article 3 General Article 4 Non -Discrimination Article 5 Correspondence Article 6 Bulletin Boards Article 7 Management Rights Article 8 - Subcontracting ' Article 9 Availability Article 10 Safety Article 11 Union Representation & Access Article 12 Payroll Deduction, Union Initiation Fees and Union Dues Article 13 No Strike - No Lockout Article 14 Outside Employment - Article 15 Attendance and Punctuality Article 16 Hours of Work Article 17 Overtime Article 18 On-Call/Standby Article 19 Call Back Article 20 Temporary Assignments Article 21 Probationary Period Article 22 Promotions — Job Openings Rev. 12/ 18/09 _1 Paee No. 3 3 3 3 4 4 5 6 7 7 8 9 10 10 11 12 12 13 13 13 14 15 1 2 3 Article 23 Discipline 4 5 Article 24 Grievance and Arbitration 6 7 Article 25 Separations 8 9 Article 26 Insurance 10 I 1 Article 27 Leaves of Absence 12 13 Article 28 Paid Sick Leave 14 15 Article 29 Holidays 16 17 Article 30 Annual Leave 19 Article 31 Uniforms, Tools and Equipment 20 21 Article 32 Remuneration 22 23 Article 33 Entire Agreement 24 25 Article 34 Printing Agreement 26 27 Article 35 Savings Clause 28 29 Article 36 Duration of Contract 31 Attachment A 32 33 Attachment 13 34 35 PERC Certification dated April 7, 1994 Rev. 12/18/09 _ 2 _ Pa No. 15 16 19 20 21 22 25 27 29 30 31 31 31 _ 31 33 34 36 I ARTICLE 1 2 3 RECOGNITION 4 5 Monroe County (the "County'l recognizes Teamster Local Union #769 affiliated with the 6 International Brotherhood of Teamsters (the "Union") as the exclusive bargaining agent 7 for PERC purposes for the employees in the unit designated by the Florida Public 8 Employees Relations Commission (PERC) in the PERC certification dated April 7, 1994, 9 a copy of which is attached. 10 11 ARTICLE 2 12 13 1INTENT AND PURPOSE 14 15 It is the intent and purpose of the parties hereto to set forth herein the basic Agreement 16 covering rates of pay, hours of work, and conditions of employment; to achieve and 17 maintain harmonious relations between the Cou nty and the Union; to ensure the 18 continuous, unitatemipted and efficient operation of Al departments; and to provide for 19 the prompt and amicable adjustment of differences which may arise. --Y 20 21 ARTICLE 3 22 23 GENERAL 24 25 3.1 Masculine pronouns used herein shall refer to men or women or both. The use of 26 masculine job classification titles shall be construed as including h 27 appropriate. 8 each gender as 28 29 3.2 Unless otherwise stated in this Agreement, references to "days" shall mean calendar days "i and not workdays. w _ _ 31 32 3.3 The term "Department Head" as used in this Agreement is defined as the level of 33 administrator in the employees' department or division who requires Board of County 34 Commissioner confirmation of the County Administrator's appointment ppointment 36 3.4 Whenever the terms "County Administrator", "Division Director" or "Department Head" 37 are used, the terms shall be interpreted to include their duly authorized 38 representatives. 39 ARTICLE 4 40 41 NON-DISCRIMINATION 42 43 4.1 Neither the County nor the Union shall discriminate against any employee as it relates to 44 race, color, religion, gender, age, national origin, veteran status, marital status, familiar 45 status, sexual orientation/preference, disability/handicap, or membership in Union or lack 46 of membership in a Union or because of any reason prohibited by law. Any claim of 47 discrimination of retaliation based on the foregoing shall be processed exclusively Rev. 12/19/09 _3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 .=moo 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 through the appropriate administrative agency (e.g., Equal Employment Opportunity, Florida Commission on Human Relations, Public Employers Relations Commission, etc.) and shall not be subject to the grievance -arbitration procedures of this Agreement. ARTICLE 5 CORRESPONDENCE 5.1 Unless otherwise provided in this Agreement all correspondence from the Union to the County shall be directed to the County Administrator, and all correspondence from the County to the Union shall be directed to the business representative. To comply with the time limits contained in this Agreement, such correspondence shall actually be received by the County Administrator or Union business representative on or before the date due unless sent via the U.S. Postal Service. When the U.S. Postal Service is utilized, all time limits contained in this Agreement shall be considered to be met so long as the postmark date is in compliance with the specified time limit. 5.2 5.3 It is the responsibility of the Union to furnish the Coudty with a mailing address for it and to advise the County of any address changes. The initial addresses are as follows: COUNTY Monroe County County Administrator 1100 Simonton Street, Suite 2-205 Key West, FL 33040 305-292-4441 UNION Teamsters Local Union #769 12365 West Dixie Highway North Miami, FL 33161 (305)642-6255 Each party shall copy the other on any and all correspondence pertaining to the contract sent to or received from PERC. ARTICLE 6 BULLETIN BOARD 6.1 The County will furnish space for the Union to place one bulletin board at each location where bargaining unit employees regularly report to work and where the County has an official bulletin board. Those locations are specified in Attachment A. The bulletin boards will be provided by and paid for by the Union. 6.2 The County Administrator shall approve the exact location for placement of all bulletin boards. Bulletin boards may be no larger than 20 inches by 30 inches. 6.3 All notices placed on such bulletin boards shall relate solely to official Union business. Notices posted shall not contain derogatory, defamatory, inflammatory, or untrue statements about the County or any of its officials or anyone else. Bulletin boards shall not be used to communicate with the general public, to distribute political matter, or for Rev. 12/ 18/09 -4- I advertising. All notices shall clearly state that they are "Teamster Notices" and shall be 2 signed and dated by the Union business representative or chief steward, who will accept 3 full responsibility for their content. 4 5 6.4 The Union stewards shall check all bulletin boards at reasonable intervals to ensure that 6 no unauthorized materials have been posted. If unauthorized materials have been posted 7 or if the Union chief steward has been notified that bulletin boards contain unauthorized 8 materials, the Union chief steward shall cause such unauthorized materials to be removed 9 immediately. When the Human Resource Director receives complaints of unauthorized 10 material or inappropriate material, the Human Resources Director will notify the Union II Chief Steward for investigation and/or immediate removal of unauthorized or 12 inappropriate material. The County may remove any such inappropriate material if the 13 Union fails to timely remove the material. 14 15 ARTICLE 7 16 17 MANAGEMENT RIGHTS 19 7.1 Except as otherwise specifically limited in this Agreement, the Union recognizes and 20 agrees that the supervision, management, control and determination of the County 21 business, operations, working force, equipment, and facilities are exclusively vested in 22 the County and its designated officials, administrators, managers, and supervisors. The 23 County alone shall have the authority to determine and direct policies, mode, and 24 methods of providing its services and unilaterally set the standards for same, without any 25 interference in the management and conduct of the County's business by the Union or any 26 of its representatives. Except as expressly limited by a specific provision of this 27 Agreement, the County shall continue to have the exclusive right to take any action it 28 deems necessary or appropriate in the management of its business and the direction of its 29 work force. Without limiting the generality of the foregoing, such, rights exclusively '�" Ju reserved to the County shall include but not be limited to its right to determine the 31 existence or nonexistence of facts which are the basis of management decisions; the right 32 to determine the size and composition of its work forces; to determine the existence of a 33 job vacancy, to temporarily fill vacancies; to hire new employees from the outside at any 34 level; to select, reinstate, retire, promote, demote, evaluate, transfer, suspend, assign, 35 direct, lay-off and recall employees subject to the express provisions of this Agreement; 36 to determine the fact of lack of work; to determine questions of physical fitness, skills and 37 ability of employees to perform the work; to reward or reprimand, discharge or otherwise 38 discipline employees; to maintain the minimum qualifications for job classifications and 39 the amount and type of work needed; to engage in experimental and development 40 projects; to determine what records are to be made and kept, including those records 41 relating to hours of work of employees, who will make and keep the records, how the 42 records are to be made and kept; to establish new jobs, abolish or change existing jobs; to 43 determine the assignment of work; to contract out or subcontract work; to schedule the 44 hours and days to be worked on each job and to make time studies of work loads, job 45 assignments, methods of operation and efficiency from time to time and to make changes 46 based on said studies; to expand, reduce, alter, combine, transfer, assign, cease, create, or 47 restructure any department or operation for business purposes; to control, regulate, and Rev. 12/ 18/09 -5- I determine the number, type and use of supplies, machinery, equipment, vehicles, and 2 other property owned, used, possessed or leased by the County; to introduce new, 3 different or improved methods, means and processes of County services and operations; 4 to make or change rules and regulations, policies and practices for the purpose of 5 efficiency, safe practices and discipline; and otherwise generally to manage the County, 6 direct the work force, and establish terms and conditions of employment, except as 7 modified or restricted by a provision of this Agreement. 8 9 7.2 The County's failure to exercise any function or right hereby reserved to it, or, its 10 exercising any function or right in a particular way, shall not be deemed a waiver to its I rights to exercise such function or right, nor precludes the County from exercising the 12 same in some other way not in conflict with the express provisions of this Agreement. 13 The Union agrees that the County may exercise all of the above without advising the 14 Union of any proposed action; nor may the Union require the County to negotiate over the 15 decision or its effects on the employees except as altered by this Agreement. The exercise 16 of the rights specifically listed in this article does not preclude the employees or their 17 representatives from conferring with management or raising questions about the practical 18 consequences that decision on these matters may have on the terms and conditions of 19 employment. 20 21 7.3 Past practices of the Board of County Commissioners or County management shall not be 22 considered for the purpose of limiting the rights, responsibilities, or prerogatives of 23 management, nor for the purpose of enlarging upon the specific and express limitations 24 on management, which are contained in this Agreement ' 25 26 7.4 If the County determines that civil emergency conditions exist, including but not limited 27 to riots, civil disorders, strikes or illegal work stoppages, hurricane conditions or similar 28 catastrophes or disorders, the provisions of this Agreement may be suspended by the 29 County during the term of the declared emergency. Notwithstanding the provisions of 30 Article 5, Correspondence, notice of such suspension will be given to the Union president 31 as soon as practicable after the determination has been made and by whatever means is 32 appropriate in the circumstances. 33 34 ARTICLE 8 35 36 SUBCONTRACTING 37 38 8.1 For purpose of this Agreement subcontracting shall mean work which is contracted out by 39 the County to an agency, person, company, or other provider which results in the direct 40 displacement or layoff of then existing bargaining unit employees. 41 42 8.2 The County reserves the right to subcontract work. Should subcontracting occur which 43 will result in bargaining unit employees being laid off, the County agrees to notify the 44 Union when the request to subcontract is put on the County Commission agenda. The 45 Union reserves the right to appear before the County Commission and express its position 46 to the County Commission for consideration at the time the Commission considers the 47 subcontracting agenda item without being held to the time limit of 5 minutes for a Rev. 12/18/09 - 6 - I representative for an organization. If employees are laid off due to subcontracting, they 2 shall have the rights provided under Article 25, Separations. 3 4 ARTICLE 9 5 6 AVAILABILITY 7 8 9.1 All County employees covered by this Agreement are subject to call back and as such 9 shall keep the County informed of their address and telephone number and/or cellular 10 phone, if they have either a phone or cellular phone 11 12 9.2 All employees being paid for stand-by must maintain availability during such stand-by 13 period. Employees who do not answer a page during such stand-by status shall be subject 14 to disciplinary action. 15 16 9.3 It is understood that some employees will be required to work during declared 17 emergencies such as hurricanes. The County will attempt to provide employees as much 18 notice as, possible that they will be required to work during the declared emergency. The 19 County will also attempt, where able under the circumstances, to give employees time to 20 secure their families and personal property prior to reporting for duty. The County will 21 pay employees who work during declared emergencies pursuant to Resolution No. 224- 22 2008 as amended from time to time. 23 24 ARTICLE 10 25 26 SAFI�TY 27 28 10.1 All employees and the County shall be responsible for following the provisions of the 29 safety policy manual. This policy will be available on the web for viewing. Each ---s$- department will have a copy,available for review. The County shall continue to have the 31 right to unilaterally establish, adopt, change, amend, withdraw, and enforce the employee 32 safety manual so long as such actions do not result in a conflict with the specific terms 33 and conditions of this Agreement. Changes to the employee safety policy manual will be 34 conspicuously posted in all work areas. Except in the case of any emergency, such 35 changes will be posted at least five working days before the effective date of the change. 36 Failure to follow prescribed safety procedures may result in disciplinary action. 37 10.2 Protective devices, wearing apparel, and other equipment necessary to protect employees 38 from injury shall be provided by the County when the County requires such use. Such 39 items, when provided, must be used, and the Union agrees that willful neglect or failure 40 by an employee to obey safety regulations and to use safety equipment shall be just cause 41 for disciplinary action. Protective devices, apparel, and equipment necessary are 42 determined by the Supervisor with the concurrence of the Safety Officer and can be 43 defined as follows: 44 45 A. Gloves 46 B. Rubber boots 47 C. Safety hard hats Rev. 12/ 18/09 _ 7 _ I E. Safety vests 2 F. Safety goggles 3 G. Uniforms 4 H. Protective suits 5 1. Other safety related devices and/or apparel necessary to protect the employee. 6 7 10.3 Any employee shall have the right to present safety concerns and recommended solutions 8 in writing to the Safety Officer. The Safety Officer shall respond in writing to the 9 employee within 15 working days. 10 11 10.4 The County shall provide the safety policy on the website and provide to each department 12 a copy for their review. 13 14 10.5 Employees determined by the County to be at risk shall be provided vaccinations for 15 Hepatitis "A" and Triple "T" (Typhoid, Tetanus & Diphtheria). 16 17 ARTICLE 11 18 19 UNION REPRESENTATION & ACCESS 20 21 11.1 The Union will not be required to represent in a grievance any employee who is not a 22 member of the Union. 23 24 11.2 For the purpose of representing employees in accordance with 'the provisions of Article 25 24, "Grievance Procedure," the Union shall designate and/or elect stewards. Each 26 steward will represent employees only in his/her department. The Union may designate 27 one of the stewards to be the Chief Steward. 28 29 11.3 The business representative of the Union shall notify the Human $sources Director, in "`- 0 writing, of the name of the stewards and the areas they are representing, at least three days 31 before they assume duty. if no such notice has been given, the County has no duty to 32 recognize the stewards. 33 34 11.4 The Union steward may represent the Union or Union members in matters appropriate for 35 ,grievance handling as set forth in this Agreement. Stewards may spend time on Union 36 business during non -working time such as before or after a shift, and during authorized 37 break and meal periods. In addition, when appropriate and in order to facilitate the 38 scheduling of meetings and resolution of grievances, the County Administrator, in his 39 sole discretion, or his designee may grant time off with pay to a steward to attend 40 grievance hearings or meetings. 41 42 11.5 Officers or agents of Teamsters Local Union # 769, except County employees on duty, 43 shall be allowed reasonable access to work sites and locations of the County with the 44 advance consent of appropriate County officials, which consent will not be unreasonably 45 withheld, provided that such access shall in no way interfere with the efficient operation 46 of any department or crew. 47 Rcv. 12/ 18/09 - 8 - 1 11.6 The Union agrees that, during the term of this Agreement, its non -employee 2 representatives and stewards shall deal only with the County Administrator, the County 3 Attorney, or the Human Resources Director, or their designees, in matters subject to 4 discussion in this Agreement. This does not prohibit a steward from addressing the 5 concerns of individual employees with a supervisor or department head. 6 7 11.7 No Union member, agent or representative of the Union, or any person acting on behalf 8 of the Union may solicit County employees during the working hours of any employee 9 who is involved in the solicitation, nor distribute literature during working hours in areas 10 where the actual work of County employees is performed. 11 12 ARTICLE 12 13 14 PAYROLL DEDUCTION, UNION INITIATION FEES AND UNION DUES 15 16 12.1 Upon receipt of a signed authorization in an acceptable form from an employee, the 17 initiation fee and regular monthly dues of the Union shall be deducted from such 18 employee's pay- Such deduction shall be effective on the next regular dues deduction 19 period following the date it is received in the Human Resources Department. The County 20 will not deduct dues in arrears except to correct errors made by the County. 21 22 12.2 Monthly Union dues shall be deducted in equal amounts in each of the twenty-six pay 23 periods of each year and shall be remitted by the County no later than the fifteenth of the 24 following month to the officer and address designated by the .4ecretary-treasurer of the 25 Union. The Union will promptly refund to the County any amount paid to the Union in 26 error on account of the dues, deduction provision. The Union shall give the County a 27 minimum of thirty days written notice of the effective date and amount of any change in 28 the amount of the dues to be deducted. 29 10 12.3 No deduction shall be made from the pay of any employee during any payroll period in 31 which the employee's net earnings for the payroll period are less than the amount of dues 32 to be paid, or where the deduction would result in an employee being paid less than the 33 minimum wage and/or overtime amount required by law. 34 35 12.4 An authorization for dues deduction may be canceled after thirty days from the date 36 written employee notice of the cancellation is received by the Vnion. The Union 37 Secretary -Treasurer will notify the County in writing to cease deductions. 38 39 12.5 The Union shall indemnify the County and any department of the County and hold it 40 harmless against any and all claims, demands, suits, or other forms of liability that may 41 arise out of, or by reason of, any action taken by the County or any department of the 42 County for the purpose of complying with the provisions of this article. 43 44 45 12.6 An employee transferred to a classification not in the bargaining unit or whose 46 employment is terminated shall cease to be subject to Union dues deduction beginning 47 with the month after the month in which such change in employee status occurs. Rev. 12/19/09 - 9 - 2 ARTICLE 13 3 4 NO STRIKE - NO LOCKOUT 5 6 13.1 During the term of this Agreement, neither the Union nor its agents nor any employee, for 7 any reason, will authorize, institute, aid, condone, or engage in a slowdown, work 8 stoppage, strike, or any other interference with the work and statutory functions or other 9 obligations of the County. During the term of this Agreement neither the County nor its 10 agents for any reason shall authorize, institute, aid, or promote any lockout of employees 11 covered by this Agreement as a result of a labor dispute with the Union, unless there is a 12 violation of the Union's no strike commitment. 13 14 13.2 The Union agrees to notify all local officers and representatives of their obligation and 15 responsibility for maintaining compliance with this article, including their responsibility 16 to remain at work during any interruption which may be caused or initiated by others, and 17 to encourage employees violating Article 13 to return to work. 19 13.3 The County may discharge or discipline any employee who violates Section 13.1 and any 20 employee who fails to carry out his responsibilities under Section 13.1, and the Union 21 will not resort to the grievance procedure on such employee's behalf except to determine 22 if the prohibited action did in fact occur. 23 24 13.4 Nothing contained herein shall preclude the County from obtaining judicial restraint and 25 damages in the event of a violation of this article. 26 27 ARTICLE 14 28 29 OUTSIDE EMPLOYMENT 31 14.1 A. Full-time employees may engage in other employment during their off -duty hours. 32 However, County employment must be considered the primary employment. Employees 33 shall not, directly or indirectly, engage in any outside employment or financial interest 34 which may conflict, in the County's opinion, with the best interests of the County or 35 interfere with the employee's ability to perform the assigned County job. Examples 36 include, but are not limited to, outside employment which: 37 1) Prevents the employee from being available for work beyond normal working hours, 38 such as emergencies or peak work periods, when such availability is a regular part of 39 the employee's job; 40 2) Is conducted during the employee's work hours; 41 3) Utilizes County telephones, computers, supplies, or any other resources, facilities, or 42 equipment; 43 4) May reasonably be perceived by members of the public as a conflict of interest or 44 otherwise discredits public service. 45 B. Employees shall not be instructed or allowed to perform work for private individuals 46 or other governmental agencies as part of his/her County employment except in those 47 instances where such work is part of contract arrangements entered into by the Board of Rev. 12/ 19/09 - 10 - I County Commissioners with such private individuals or government agencies, or in those 2 cases where under prior Board of County Commission policy, the employee is to give 3 service in an emergency situation. 4 5 14.2 Employees who have accepted outside employment are not eligible for paid sick leave 6 when the leave is used to work on the outside job. Fraudulent use of sick or personal 7 absences will be cause for disciplinary action. 8 9 ARTICLE 15 10 11 ATTENDANCE AND PUNCTUALITY 12 13 15.1 It is the policy of the County to require employees to report for work punctually as 14 scheduled and to work all scheduled hours and any required overtime. Excessive 15 tardiness and excessive absences disrupt workflow and customer service and will not be 16 tolerated. 17 18 15.2 Unauthorized -or -excessive absences or tardiness will result in disciplinary action, up to 19 and including termination. Absences in excess of those allowed by policy, tardiness or 20 leaving early without proper authorization are grounds for discipline. 21 22 15.3 Employees should notify their supervisor, as for in advance as possible whenever they are 23 unable to report for work, know they will be late, or seek permission to leave early. 24 Notification shall not be later than 1 hour after start time of employee's normal shift start. 25 Such notification should include a reason for the absence and an indication of when the 26 employee can be expected to report for work. If the supervisor or department head is 27 unavailable, the division clerk or the County Administrator should be contacted and given 28 the same information. 29 ""'30 15.4 Employees who report for work without proper equipment or in improper attire may not 31 be permitted to work. Employees, who report for work in a condition deemed not fit for 32 work, whether for illness or any other reason, will not be allowed to work. 33 34 15.5 Employees are expected to report to their supervisor after being late or absent, giving an 35 explanation of the circumstances surrounding their tardiness or absence, and certify that 36 they are fit to return to work. 37 38 15.6 Employees who are absent from work for three consecutive workdays without giving any 39 notice to the County will be considered as having "abandoned their position" and thereby 40 voluntarily quit. 41 Rev. 12/ 18/09 I ARTICLE 16 2 3 HOURS OF WORK 4 5 16.1 The workweek shall start at 12:01 a.m. Sunday and end at 12:00 midnight Saturday, 6 unless otherwise approved by the County Administrator. The County shall not 7 indiscriminately change regularly scheduled working hours and days off of employees 8 covered by this Agreement. Changes shall be made by reason of operational necessity 9 and/or efficiency. Such changes require at least five working days notice to the affected to employees except in the case of valid public necessity, such as equipment failure, I I unanticipated employee absences, and the like. Employees' regular work schedules shall 12 contain two consecutive days off 13 14 16.2 Employees classified as regular full time will receive a total of one unpaid hour for is meal/rest period per work shift, the time and sequence of which will be determined by the 16 Supervisor and approved by the Department Head. If it is necessary for the non-exempt 17 employee to work without a meal/rest period he/she will be otherwise compensated for 18 that time. All other employees will receive meal or rest periods in an amount and time 19 deemed appropriate by their Supervisor. Meal and rest periods shall be scheduled by the 20 Department Head consistent with the effective operation of the department and may be 21 rescheduled whenever necessary. 22 23 ARTICLE 17 24 - 25 OVERTIME 26 27 17.1 It is the policy of the County to work its employees within the regularly scheduled 28 workweek unless conditions warrant. 29 30 17.2 Management may schedule overtime beyond the standard hours when it is in the best 31 interest of the County and is the most practical and economical way of meeting workloads 32 or deadlines. 33 34 17.3 Employees may be required to work overtime when requested by management unless 35 excused by management. Employees may volunteer to work overtime and should 36 communicate that interest to their supervisors. Overtime will only be scheduled for those 37 employees fully qualified to perform the work required. In all work units, the County will 38 make reasonable efforts to equalize overtime among employees who are similarly 39 classified, except as addressed in Section 17.4 below. All other factors being the same, 40 seniority may be used as a selection factor. 41 42 17.4 For overtime computation, only time worked shall be considered as time worked. 43 Absences from work will not be counted as time worked for overtime computation. 44 Rev. 12/18/09 - 12 - 1 2 ARTICLE 18 3 4 ON-CALUSTANDBY 5 6 On -call duty assignments occur when a supervisor expressly orders that an employee 7 perform a certain function. These assignments are made when a supervisor mandates that 8 an employee be available for work due to an urgent situation during off -duty time. Such 9 assignments will be given to the employees who normally perform the work during 10 normal hours of work. For employees on a standby status, one hour of pay at time and 11 one-half will be paid for each regular workday. Two hours of pay at time and one-half 12 will be paid for each non -work day and holidays. On -call hours shall be in addition to 13 time worked. 14 15 ARTICLE 19 16 17 CALLBACK 19 19.1 Call back is work due to an emergency or other urgent situations during off -duty hours. 20 Callback pay shall be paid to employees either called during off duty hours or called back 21 to a work site during off duty hours. This pay shall be as follows: (a) one hour paid for 22 employees called on the phone (or the actual time spent on the phone calls, whichever is 23 greater) during off duty hours when the problem is resolved over the telephone and does 24 not require the employee to report to a job site, or (b) two hourf of pay or the actual time 25 worked, whichever is greater, for an employee called back to a work site during off duty 26 hours. This time shall be considered as time worked for computing overtime. The call or 27 call back of any employee requires the prior approval of the department head or designee. 28 29 19.2 The parties agree that when an employee is regularly scheduled to come to a County 3 building in order to open and close the building for a third party is not "call back" as that 31 term is defined in the previous paragraph, but that the employee who is called to work for 32 the purpose will be entitled to a minimum of two (2) hours or actual time worked, 33 whichever is greater, computed from the time the employee arrives at the County 34 building. 35 36 ARTICLE 20 37 38 TEMPORARY ASSIGNMENTS 39 40 20.1 The County may temporarily assign or appoint any employee to perform work, which 41 would normally be done by an employee in another classification, when at the discretion 42 of the County such an assignment, or appointment is necessary. 43 44 20.2 An employee temporarily assigned to perform work outside his normal classification shall 45 suffer no loss of pay should said temporary assignment be to a lower classification. 46 Rev. 12/18/09 - 13 - 1 20.3 An employee may be assigned to work in a higher classification up to one year, unless 2 otherwise determined by the County Administrator. An employee required to work in a 3 higher classification 30 consecutive working days or less may be required to do so at no 4 increase in pay. If the employee is required to work beyond this period, he or she should 5 be given a temporary transfer to the higher classification and be paid the appropriate rate 6 for the higher classification retroactively applied to day one he or she served in such 7 higher classification and every consecutive working day thereafter. At the conclusion of 8 the assignment, pay shall revert to the authorized rate established for his regular position. 9 Any such temporary increase granted shall not affect the employee's eligibility for normal to salary advancement. it 12 ARTICLE 21 13 14 PROBATIONARY PERIOD 15 16 21.1 The probationary or "working test" period is an integral part of the hiring and promotion 17 process. It is utilized to closely observe the new employee's work, to secure the most t8 effective -adjustment of a new employee to the position', and to reject any employee whose 19 performance does not meet the required work standards. Probationary employees are 20 generally ineligible for employee requested transfers or promotions unless the County 21 Administrator or Division Director determines that it is in the best interest of the County 22 to waive this rule. Probationary employees who are permitted to transfer or promote shall 23 have their new probationary period run concurrent with their existing probationary period. 24 25 21.2 The probationary period shall be nine consecutive months from the employee's first day 26 of work with the County. If the employee has completed the probationary period, the 27 employee shall be placed on regular status. The County reserves the right to extend the 28 probationary period for up to three months. Such a decision shall be made at least two 29 weeks before the end of the initial probationary period, and notigg gtall_be provided to 30 both the employee and the Uluon representative. 31 32 21.3 Regular status denotes final appointment in a specific County position and classification 33 following successful completion of the probationary period. 34 35 21.4 Newly hired probationary employees may be dismissed at any time at the discretion of the 36 County and are not entitled to the Career Service procedures or payments of sick leave at 37 time of termination. 38 39 21.5 If an employee who is serving a probationary period incurred as a result of a promotion is 40 found to be unqualified to perform the duties of the higher position, a good faith effort 41 will be made to return the employee to the position and status held immediately prior to 42 the promotion. If the employee's former position is filled or otherwise unavailable, the 43 employee may be transferred to a vacant position for which the employee qualifies. If no 44 vacancy exists for which the employee is qualified, the employee will be placed in a lay- 45 off status with recall rights. 46 Rev. 12/18/09 - l4 - 1 2 ARTICLE 22 3 4 PROMOTIONS — JOB OPENINGS 5 6 22.1 In filling all vacancies in the bargaining unit, employees shall meet the qualification 7 standards of education, training, experience, and other requirements for the position to 8 which the promotion is being sought. Standards and qualifications will be established to 9 meet the basic requirements of the position. 10 11 22.2 Job openings will be posted on the employee bulletin boards a minimum of seven t2 calendar days. Employees, excluding temporary and all probationary employees, may 13 initiate a written request for transfer/promotion consideration. 14 15 22.3 An employee's eligibility for promotion will be determined by the requirements of the 16 new job. In addition, the employee must have both a satisfactory performance record and 17 no disciplinary actions (written warning or greater) during the preceding three-month 18 period. .Employees along with external applicants will be considered. All things being 19 equal, and if consistent with affirmative action plans, senior employees shall have 20 preference, but there will be no guarantee of promotion. Current employee candidates for 21 promotion will normally be screened and selected on the basis of attendance and work 22 records, performance appraisals, and job -related qualifications including, in some 23 instances, aptitude tests. Seniority will prevail if two or more candidates are judged to be 24 equally qualified. 25 26 22.4 Promoted employees shall receive a 5% raise or the minimum of the new grade, 27 whichever is greater. 28 29 22.5 Promoted employees will be placed on "promotion probation" status for a period of three 30 months. ` 31 32 22.6 The County agrees to post management vacancies and will give bargaining unit 33 employees consideration in filling those vacancies. 34 22.7 The County will notify the Union of every job opening by sending an e-mail to the 35 'Business Representative at the time that the job opening is advertised internally. 36 37 ARTICLE 23 38 39 DISCIPLINE 40 41 23.1 No employee covered by this Agreement shall be disciplined or discharged without 42 proper cause. All discipline or discharge notices shall be in writing with a copy provided 43 to the employee. Such notices shall contain as complete and precise an explanation as 44 possible for the action being taken. 45 46 23.2 The County agrees with the tenets of progressive and corrective discipline; however, the 47 County has the right to review the employee's work history and prior record of Rev. 12/ 18/09 -Is- I disciplinary action when determining the appropriate action to be taken. The County may 2 provide employees with notice of deficiencies and an opportunity to improve. 3 Notwithstanding the County's embrace of progressive and corrective discipline, the 4 County reserves the right to discipline employees for cause when the County deems it to 5 be appropriate. 6 7 23.3 Disciplinary actions or measures may include, subject to the rules of the Board of County 8 Commissioners, any of the following: 9 A. Oral warning 10 B. Written reprimand 11 C. Suspension 12 D Demotion 13 E. Discharge 14 15 23.4 All discipline in the form of adverse employment action must be processed exclusively 16 through the grievance -arbitration procedure herein. The Union waives the right of all 17 bargaining unit members to utilize the Career Service Act procedures for any purpose. 18 - - t9 23.5 Disciplinary actions older than 5 years shall not be considered for purposes of progressive 20 discipline. 21 22 ARTICLE 24 23 24 GRIEVANCE AND ARBITRATM 25 26 GRIEVANCE PROCEDURE 27 28 24.1 Except when doing so would present an unreasonable risk to the employees' safety, 29 bargaining unit employees will follow all written and verbal ordw-given by superiors 30 even if such orders are alleged to be in conflict with the Agreement. Compliance with 31 such orders will not prejudice the right to file a grievance within the time limits contained 32 herein, nor shall compliance affect the ultimate resolution of the grievance. 33 34 24.2 A "grievance" is a claimed violation of an express provision of this Agreement. 35 Notwithstanding that definition, discipline in the form of an adverse employment action 36 shall be subject to the grievance -arbitration procedure set forth herein. No grievance will 37 or need be entertained or processed unless presented in the manner described herein, and 38 unless filed in a manner provided herein within the time limit prescribed herein. A 39 grievance may be filed by a bargaining unit employee or by the Union (hereinafter the 40 "grievant"). In either case, the procedure to be followed will be the same. The Union and 41 management may mutually agree to waive any step. Any employee covered by this 42 Agreement must use this grievance process and has no right to any other grievance 43 process (i.e., administrative policy, etc.). 44 45 24.3 Any grievance defined as a claim reasonably and suitably founded on a violation of the 46 terms and conditions of this Agreement shall systematically follow the grievance 47 procedure as outlined herein. Any grievance filed shall refer to the provision or Rev. 12/1SM - 16- i provisions of the Agreement alleged to have been violated, and shall adequately set forth 2 the facts pertaining to the alleged violation. 3 4 24.4 Rules of Grievance Processing: 5 6 (A) The time limitations set forth in this Article are the essence of the Agreement. A 7 grievance not advanced to the higher step by the Union or the grievant within the 8 time limit provided shall be deemed permanently withdrawn and as having been 9 settled on the basis for the decision most recently given. Failure on the part of the 10 County's representative to answer within the time limit set forth in any step will I 1 entitle the employee to proceed to the next step. The time limit at any stage of the 12 grievance procedure may be extended by written mutual agreement of the parties 13 involved in that step. 14 15 (B) A grievance presented at Step 2 and above shall be dated and signed by the 16 aggrieved employee presenting it. A copy of the grievance must be forwarded to 17 Human Resources by the grievant and/or the Union. The departmental fax 18 machine -will be made available for this purpose. A decision rendered shall be 19 written to the aggrieved employee with copy to the Union and shall be dated and 20 signed by the County's representative at that step. 21 22 (C) When a written grievance is presented; the County's representative shall return a 23 dated and signed copy of it at that particular step. 24 25 (D) When a grievance is reduced to writing there shall be set forth: 26 27 1. A complete statement of the grievance and the facts upon which it is 28 based; 29 2. The section or sections of this Agreement claimed tg_t ve been violated; 30 3. Any witnesse$ to the event or occurrence; and 31 4. The remedy or correction requested. 32 33 (F) In the settlement of any grievance resulting in retroactive adjustment, such 34 adjustment shall be limited to ten calendar days prior to the date of the filing of 35 the grievance. 36 37 STEPS FOR GRIEVANCE PROCESSING 38 39 Step 1: In the event a grievance arises, the employee must present a written grievance using the 40 form attached to this Agreement as Attachment B to his immediate supervisor within three 41 working days after the employee had knowledge of the event or occurrence giving rise to the 42 grievance. The aggrieved employee may request a representative of the Union to be present. 43 Discussions will be informal for the purpose of settling differences in the simplest and most 44 direct manner. The supervisor will consult with the department head. The department head shall 45 reach a decision and communicate it in writing to the aggrieved employee with a copy to the 46 Union within ten working days from the date the grievance was presented to the supervisor. 47 Rev. 12/ 18/09 - 17 - i % 2: If the grievance is not settled in the first step, the aggrieved employee, within five 2 working days, shall forward the written grievance to the division director. The division director 3 shall meet with the aggrieved employee, who may be accompanied by a Union steward and the 4 Union chief steward. Within ten working days after the receipt of the grievance, unless such time 5 is mutually extended in writing and the grievance is not resolved, the grievance may then be 6 forwarded to Step 3. 7 8 St_ e — If the grievance is not settled in Step 2, the Union has ten (10) working days from receipt 9 of the Step 2 answer to submit a written appeal to the County Administrator or his designated io representative. Within ten (10) working days thereafter, a meeting shall be held between the l I County Administrator (or designee), the Union Agent, the Shop Steward, and the grievant. The 12 County Administrator shall provide his written answer within ten (10) working days following 13 such meeting. The parties may be mutual written agreement extend the above timelines without 14 loss of rights under this Article. Is 16 Stev 4: In the event that the grievance is not settled boarding Step 3, either party may submit the 17 grievance to binding arbitration within ten (10) working days (or to a time period otherwise 18 mutually agreed to by -the Union and County) of the written response of the resolution board. A 19 panel of seven (7) arbitrators will be requested from the Federal Mediation and Conciliation 20 Service. The parties shall alternately strike names from the list until an arbitrator is selected. For 21 the first arbitration following the implementation of this Agreement, the County shall strike the 22 first name. Thereafter, the Union shall be required to strike the first name in the next arbitration 23 case. For subsequent arbitrations, the parties shall continue to alternate. Both parties shall have 24 the right to reject one panel, and request another from which the arbitrators must be chosen using 25 the above -prescribed procedure. Hearings before the arbitrators shall be conducted in accordance 26 with the rules of the Federal Mediation and Conciliation Service. The Union and the County 27 shall each pay'% of the Arbitrator's fees and expenses. 28 29 24.5 As promptly as possible after the arbitrator has been selected, the arbitrator shall conduct F'� 30 a hearing between the parties and consider the grievance. The decision of the arbitrator 31 will be served upon the Union and the County in writing. It shall be the obligation of the 32 arbitrator to issue his/her decision within 60 calendar days after the close of the hearing to 33 include receipt of post -hearing briefs. Any party desiring a transcript of the hearing shall 34 bear the cost of such transcript unless the parties mutually agree to share the cost. Each 35 party shall bear the expense of its own witnesses and of its own representatives for 36 purposes of the arbitration hearing. 37 38 24.6 The jurisdiction and authority of the arbitrator and his opinion and award shall be 39 confined exclusively to the interpretation and/or application of the express provision(s) of 40 this Agreement. He shall have no authority to add to, detract from, alter, modify, amend 41 or modify any provision of this Agreement; or to establish or alter any wage rate or wage 42 structure. No liability shall be assessed against the County for a date prior to the date of 43 the grievance is submitted in writing, or, in disciplinary cases, from the date of the 44 discipline or discharge. 45 46 The arbitrator shall not hear or decide more than one (1) grievance without the mutual 47 consent of the County and the Union. The written award of the arbitrator on the merits of Rev. 12/19/09 - 18 - I any grievance adjudicated within his jurisdiction and authority shall be final and binding 2 on the aggrieved employee, the Union and the County, provided that either party shall be 3 entitled to seek review of the arbitrator's decision as provided by law. With respect to 4 arbitration involving the layoff, discipline or discharge of employees, the arbitrator shall 5 have the authority to order the payment of back wages and benefits the employee would 6 otherwise have received but for his discipline or discharge (less compensation, including 7 unemployment compensation payments and other compensation earned elsewhere during 8 the period attributable to the layoff, discipline or discharge in issue, and less any amounts 9 caused by the grievant's failure to mitigate his or her damages.) The arbitrator shall have 10 no authority to award compensatory or punitive damages or attorney's fees. 11 12 24.7 The arbitrator may not issue declaratory opinions and shall be confined exclusively to the 13 question, which is presented, which question must be actual and existing. 14 15 24.8 Nothing in this Agreement shall prohibit the presence of a Union representative at any 16 steps of the grievance procedure. 17 24.9 No claimed violation of any federal statute, state or ldcal law, rule or regulation shall be 1s subject to the grievance -arbitration procedure. 19 20 ARTICLE 25 21 22 SEPARATIONS 23 24 25.1 The effective date of separation shall be the last day on which the employee is present for 25 duty unless otherwise specified herein. 26 27 25.2 Resignation is defined as an action whereby an employee voluntarily leaves County 28 employment. An employee with no pending disciplinary action wishing to leave the 29 County in good standing shall file with the County a written resignation, stating the 30 effective date and reasons for leaving. Such notice must be given at least two weeks prior 31 to the date of separation. Employees who are absent from work for three consecutive 32 workdays without being excused or giving proper notice of their absence will be 33 considered as having voluntarily quit. 34 35 25.3 'Retirement is defined as a voluntary or involuntary procedure whereby an employee 36 separates from County employment for reasons of length of service or disability. The 37 Florida Retirement System shall govern all retirement regulations and benefits. Neither 38 the employee nor the Union may use the grievance -arbitration procedures outlined in 39 Article 24 to address complaints concerning the Florida Retirement System. 40 41 25.4 Termination of employment shall be effective as of the date of death. All County 42 compensation and County benefits due to the employee as of the effective date of death 43 4hall be paid to the beneficiary, surviving spouse, or the estate of the employee, as 44 determined by law or by executed forms in the employee's personnel file. 45 46 25.5 If a layoff does occur all temporary employees and newly hired probationary employees 47 within affected divisions will be terminated first. The only exception would be if the Rev. 12118 09 -19- I temporary or newly hired probationary employee has a particular skill required to perform 2 certain duties and no one else employed by the County is qualified Permanent 3 employees are to be laid off based on their length of continuous service, provided that the 4 employees who are retained have the demonstrated ability and fitness to perform the 5 available work. Laid -off permanent employees shall be placed in open positions for 6 which they are qualified. 7 s 25.6 If an employee is laid ofi the employee will be compensated for his sick and vacation as if 9 he were voluntarily quitting. Employees eligible for sick leave payment per Article 28.4 10 shall have the option of leaving the sick leave on account for up to one year. A laid -off 11 employee shall be eligible for conversion of employee health care benefits at the 12 employee's expense. Laid -off employees remain eligible for recall into positions 13 previously held with the County or for which they are qualified for a period of two years 14 from the layoff date, except this provision shall not apply if the employee accepts another is position within the County within this time period. Any employee so recalled shall be 16 subject to passing a typical pre -employment screening. No continuous service benefits of 17 any kind shall accrue during the layoff period. The County will notify said laid off 18 employee in writing via email of positions for which he/she may be qualified, with a copy t9 to Union, for a period of two years following the layoff date 20 21 25.7 A discharge is the involuntary separation of an employee from County employment. 22 Employees discharged for disciplinary reasons shall not generally be eligible for re- 23 employment and shall lose all seniority and reinstatement privileges. The County will 24 notify the Union steward upon the discharge of an employee id the bargaining unit but 25 failure to give such notice shall not affect the validity of the discharge. 26 27 25.8 The final pay for terminated employees will be prepared for distribution on the next 28 normally scheduled pay date following the termination date. It can be mailed to the last 29 address designated by the employee. Final pay will be paid on a rwrtpally scheduled pay 30 period. ' 31 32 25.9 At the time of separation and prior to receiving final monies due, all records, books, 33 assets, uniforms, keys, tools, and other items of County property in the employee's 34 custody shall be returned to the department. 35 36 25.10 Any outstanding debts incurred by an employee, which are due the County, shall be 37 deducted from the employee's final paycheck and/or termination leave pay. 38 39 ARTICLE 26 40 41 INSURANCE 42 43 26.1 Bargaining unit employees will be eligible for coverage under the County's insurance 44 plans for all other similarly -situated personnel. The County reserves the right to change 45 insurance carriers or benefits or both, and the Union hereby expressly waives any right to 46 bargain over such a decision; provided, however, that the County will bargain with the Rev. I V18109 - 20 - ► Union over the effects of any change in insurance carriers or benefits, if the Union 2 requests that such bargaining occurs. 3 4 ARTICLE 27 5 6 LEAVES OF ABSENCE 7 8 27.1 Jury Duty and Court Leave. 9 10 A A full-time employee who is summoned to jury duty by a city, the County (Monroe), I I the State of Florida, or the Federal Government or subpoenaed to appear in court as a 12 witness in a criminal or civil action arising from his or her county employment shall be 13 granted time off with pay for the time actually spent on jury duty or in the court 14 appearance. Fees paid by the court will be retained by the employee unless otherwise 15 determined by the County Administrator. As conditions precedent to deceiving time off 16 with pay for jury duty or court appearance of the aforesaid nature, the employee must: 17 18 _ (a.) Notify his/her Department Heid of the summons or subpoena 19 immediately upon receipt produce the summons or subpoena to his/her 20 Department Head upon request, and provide the Department Head with an 21 estimate of the duration of the absence; 22 23 (b.) Report to the Department Head immediately upon the conclusion or 24 continuance of such jury duty or court appearance, 25 26 (c.) Report status of jury duty to supervisor or designee on a daily basis. 27 28 B. Any employee on jury duty as specified above, and who is released or excused from 29 jury duty during normal working hours, will immediately contact his or her supervisor in 30 order to determine whether the employee will be required to- report -back to work. 31 Employees who work a 24 hour shift, will contact their Department Head (or designee) 32 when released from jury duty. If the Department Head (or designee) determines that the 33 employee could not effectively complete his or her work shift, the employee may be 34 granted time off with pay for the remainder of the shift. 35 36 'C. The County, in its discretion, may reschedule the working hours and days of work of 37 an employee employed on other than a full-time basis who is summoned to jury duty or 38 subpoenaed to appear in court as a witness by a city, the County (Monroe), the State of 39 Florida, or the Federal Government in a criminal or civil action arising from his or her 40 county employment. If, in the County's judgment, it is not feasible or practical to 41 schedule the employee's hours of work around such, the County shall grant the employee 42 time off with pay for the time actually spent on jury duty or in the court appearance. As 43 conditions precedent to receiving time off with pay for jury duty or court appearance of 44 the aforesaid nature, the employee must abide by the provisions contained above in 45 Article 27.1, (a), (b) and (c). 46 Rev. 12/ 18/09 - 21 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 D. If any employee is subpoenaed as a witness other than in the specific circumstances described above, the County will grant the employee leave without pay to the extent that the Department Head so approves. E. Notwithstanding any of the provisions of Article 27.1-A above, no employee shall receive pay from the County where the employee is a plaintiff, claimant, or witness against the County in a matter contrary to the County's interests. F. Any employee subpoenaed or otherwise requested to be a participant in any legal matter related to County business must inform the County Attorney's office as soon as possible after receiving said notification. 27.2 Military Leave An employee may request military leave to serve on active duty in an emergency or required annual duty, and shall be compensated in accordance with state law, and federal law. Any claimed violation of this policy must be resolved exclusively through administrative -judicial procedures, and not through the grievance -arbitration procedures set forth herein. 27.3 Family Medical Leave Act The County's policy is contained at Section 8.05 of the County's Personnel Policies and Procedures. FMLA is governed by applicable federal law. Any'claimed violation of this policy must be resolved exclusively through administrative judicial procedures, and not through the grievance -arbitration procedures set forth herein. 27.4 Bereavement Leave All employees covered under this policy shall be granted up to two working days off with pay in order to attend a funeral of a member of the employee's immediate family. The immediate family shall be construed to mean one of the following: Spouse, parent, son, daughter, sister, brother, domestic partner, legal guardian, grandparent or in-laws. Additional time off (over and above the two working days herein provided) may be approved by the Department Bead, and charged to sick or annual leave. Additionally, the County may require proof of death of a family member before making payment for leave. 28.1 SICK LEAVE A. ELIGIBILITY Rev. 12/19/09 &RT1CLE 28 PAID SICK LEAVE All salaried employees with regular status working 20 hours or more per week shall have the privilege of accruing sick leave in accordance with these policies. -22- 1 2 Employees shall not be eligible to use sick leave until they have been in the 3 County service for 90 days, unless recommended by the Department Head and 4 approved by the Division Director. Verification of illness by a physician may be 5 required. 6 7 B. ACCRUAL OF SICK LEAVE 8 9 All regular, full-time employees will accrue 4 hours sick leave per pay period. 10 I I There will be no limit of the amount of sick leave that can be accrued. 12 13 Sick leave for employees working less than 40 hours per week, but at least twenty 14 (20) hours per week will be prorated according to the hours worked. 15 16 When there has been a break in service of 48 hours or more, the employee upon 17 reinstatement or re-employment will begin accruing sick leave as a new employee. 18 Employees who are on leave without pay for more than 8 hours during a pay 19 period wr71 not accrue sick leave for that pay period. 20 21 C. USE OF SICK LEAVE 22 23 1. Sick leave shall be used only with the approval of the applicable Department 24 Head, Division Director or County Administrator and shall not be authorized prior 25 to the time it is earned and credited to the employee except in cases of prearranged 26 medical appointments, surgery or other health -related matters. 27 28 2. Sick leave shall be authorized only in the event of 29 30 (a.) The employee's personal illness, injury or exposure to a contagious 31 disease which would endanger others. 32 33 (b.) Illness or injury of a member of the immediate family. (see definition 34 of immediate family.) 35 36 (c.) The employee's personal appointments with a practitioner when it is 37 not possible to arrange such appointments for off -duty hours, but not to 38 exceed the extent of time required to complete such appointments. 39 40 (d.) Prearranged surgery or other health -related matters. 41 42 D. Monroe County has established a Sick Leave Pool for eligible full-time employees 43 designed to aid the employee suffering from an extended illness or injury (See 44 Administrative Instruction 4702 for rules and enrollment procedures). Rev. 12/18/09 - 23 - 2 28.2 MEDICAL JUSTIFICATION 4 A. Sick leave is a privilege, and not a benefit. In fact, use of sick time actually causes a 5 hardship on the County. The County must, therefore, ensure that employees utilizing sick 6 leave are complying with The Monroe County Personnel Policies and Procedures. 7 s Employees must meet the following conditions in order to be granted sick leave with pay: 9 10 (1) Notify his/her immediate Supervisor as soon as the employee learns that 11 he/she will be unable to report to work in accordance with individual department 12 policy. The employee shall call in to his/her immediate Supervisor at least one (1) 13 time on each consecutive shift thereafter, that the employee will miss work 14 because of sick leave. 15 16 (2) File a written report (after returning to work) explaining the nature of the 17 illness when required, by her Supervisor or Department Head. 18 _ f 19 (3) Permit medical examination, nursing visit or any County inquiry (telephone 20 call, visit to the employee's house, etc.) deemed appropriate by the County to 21 document the illness of the employee or family member. 22 23 The Department Head is responsible for following up on sick leave use and for ensuring 24 that there is no sick leave abuse. The Department Head may require any employee to 25 bring in a note from. his or her personal physician for absences of three (3) consecutive 26 working days or more. However, if a Department Head reasonably suspects that an 27 employee is abusing sick leave, said Department Head may require that any use of sick 28 leave by the employee for herself or family member be justified by a note from a 29 physician. Further, in the event that a Department Head is unsatisfied with the initial *"--130- doctor's note, he may require the employee or family member -to -be examined by a 31 County - designated physician at the County's expense. 32 33 B. If it is determined that the employee is unfit to continue working, the Department 34 Head may require the employee to use any part of his accrued sick leave, compensatory 35 time or annual leave and may thereafter require the employee to take such leave without 36 pay as is medically determined sufficient to restore him to normal health, however, this 37 will in no way prevent the County from separating him from employment if the absence 38 would be of such duration as to pose a hardship on the operations of the Department. 39 40 C. The Department Head may require, at any time, an employee to present medical 41 evidence that he is physically or mentally fit to work and/or the Department Head may 42 require an employee to be examined by a County -designated physician or psychiatrist, at 43 the County's expense. 44 45 D. If the employee's illness is covered by FMLA, the County's FMLA policy will govern 46 entitlement to leave and the terms and conditions of that leave. 47 Rev. 12/19/09 - 24 - 1 28.3 NOTIFICATION OF ABSENCE 1) 3 If absent for three consecutive work days without reporting to the Supervisor a reason 4 sufficient to justify the absence, the employee may be removed from the payroll as having 5 voluntarily resigned without notice. The Supervisor is to notify the Department Head. 6 Any unauthorized absence may be cause for disciplinary action, up to and including 7 termination 8 9 28.4 PAYMENT OF UNUSED SICK LEAVE 10 11 A. An employee who terminates with less than five (5) years continuous service shall 12 not be paid for any unused sick leave credits. 13 14 B. Employees with varying years of continuous service shall, upon separation, from I5 the County in good standing, death or retirement, receive incentive sick leave pay as 16 follows: 17 18 5- to LO _years of service - 1/4 of all accrued 'sick leave, with a maximum of 30 19 days. 20 21 10 to 15 years of service - 1/2 of all accrued sick leave, with a maximum of 90 22 days. 23 24 15 years or more - 1/2 of all accrued sick leave, with a maximum of 120 days. 25 26 C. The payments made as terminal pay for unused sick leave, whether paid as salary or 27 otherwise, shall not be used in the calculation of average final compensation for 28 retirement. 29 JU- D. Employees who leave the County service without proper notice or who are terminated 31 for just cause may be denied payment of accrued sick leave. 32 33 ARTICLE 29 34 35 HOLIDAYS 36 37 29.1 OFFICIAL HOLIDAYS 38 39 The following are holidays which shall be observed by all County offices in which 40 functions can be discontinued without adversely affecting required services to the public: 41 42 New Year's Day Labor Day 43 Presidents Day Columbus Day 44 Martin Luther King's Birthday Veterans Day 45 Good Friday Thanksgiving Day 46 Memorial Day Thanksgiving Friday 47 Independence Day Christmas Day Rev. 12118/09 - 25 - 1 2 In addition to the above -designated holidays, the Board of Commissioners, in its sole 3 discretion, may grant other special holidays during the course of a year to some, or all, 4 County employees. 5 6 29.2 ELIGIBILITY 7 8 All salaried employees on the active payroll on the date of the holiday shall be eligible for 9 holiday pay at their regular rate of pay. Employees must be working or on approved leave 10 with pay the entire day before and the day after a holiday to be compensated for said II holiday. 12 13 29.3 WORK DURING HOLIDAYS 14 15 Each employee shall observe all holidays designated in this Section, provided that the 16 work load of the department is, in the discretion of the County Administrator, such that 17 the employee's work load cannot be discontinued without causing a hardship to the 18 County.. _ 19 20 In the event that the work load in any department does not permit the observance of any 21 designated holiday, all employees required to work on said designated holiday, or if 22 holiday falls on employees designated day off, may be granted another day's leave in lieu 23 of the holiday or paid for the work performed on the holiday. If employee wishes to 24 substitute a holiday, it will be scheduled in the manner as annual leave. 25 26 29.4 HOLIDAYS FALLING ON WEEKENDS 27 28 Unless otherwise specified by the Board of County Commissioners - when a holiday falls 29 on a Saturday, the preceding Friday shall be observed as a holiday - when a holiday falls �"-30 on a Sunday, the following Monday shall be observed as a holiday..- " 31 32 Some County facilities are open on Saturdays and Sundays. When a holiday falls on a 33 Saturday or Sunday, those facilities will observe the holiday on the actual holiday in lieu 34 of the normally scheduled County Holiday. 35 36 29.5 "HOLIDAY DURING PAID LEAVE 37 38 Employees on annual or sick leave during periods when designated holidays occur shall 39 not have the day of the holiday charged against their accrued leave. 40 41 29.6 OBSERVANCE OF RELIGIOUS HOLIDAYS 42 43 Employees who choose to observe other "holidays" for religious or other reasons must do 44 so by utilizing annual leave pursuant to Article 30. Rev. IV18109 - 26 - 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 ARTICLE 30 ANNUAL LEAVE A. ELIGIBILITY All salaried employees with regular status working 20 hours or more per week shall earn and accrue annual leave with pay. B. ACCRUAL For current employees and employees hired on or prior to September 30,' 1999, Annual leave for regular, employees shall be earned in accordance with the following table: Years of Continuous Hours of Leave Earned Hours of Leave Earned ServiCe During Each Calendar During Each Calendar Month Month 40 HPW 37 % HPW _ M 1 through 3 years 4 hours per bi-weekly 3.75 hours per bi-weekly pay prod pay period (13 working days per year) (13 working days per yam) 4 through 10 years 5 hours per bi-weekly, 4.75 hours per bi-weekly pay prod pay period (16 1/4 working days per (16.5 working days per year) yam) 11 through 15 years 6 hours per bi-weekly 5.75 hours per bi-weekly pay prod pay period (19 1/2 working days per (19.9 working days per year) yam) 16 through termination of employment 7 hours per bi-weekly pay period (22 3/4 working days per yam) 6.75 hours per bi weekly pay period (23.4 working days per year) Monroe County currently has a bi-weekly pay period system commencing at 12:00 a.m. Sunday, ending two Saturdays later at 11:59 p.m. There are 26 pay periods per year. Rev. 12/18/09 - 27 - I For employees who are hired on October 1, 1999, or after Annual leave for 2 regular, full-time employees with a work week of 40 hours per week shall be 3 earned in accordance with the following table: 4 5 Years of Continuous Hours of Leave Earned 6 Service During Each Calendar 7 Month 8 -_-----__-------------------- 9 1 through 5 years 4 hours per bi-weekly 10 pay period I I (13 working days per year) 12 13 6 through 15 years 5 hours per bi-weekly 14 pay period 15 (161/4 working days per 16 year) 17 18 16 through termination of employment 19 6 hours per bi-weekly 20 pay period 21 (19 1/2 working days per 22 year) 23 24 Monroe County currently has a bi-weekly pay period sysmn commencing at 12:00 25 a.m. Sunday, ending two Saturdays later at 11:59 p.m. There are 26 pay periods 26 per year. 27 28 Annual leave for employees working less than 40 hours per week, but more than 29 20 hours per week wiH be prorated according to the hours worked When there ---9e- has been a break in employment of 48 hours or more, tfie employee, upon 31 reinstatement or re-employment, will begin earning annual leave as a new 32 employee. 33 34 Employees who are on leave without pay status for more than 8 hours during a 35 pay period will not accrue annual leave for that pay period. 36 37 C. 38 1. Annual leave may be used on a payday -to -payday basis as it is earned 39 according to scheduling requirements and may be accumulated up to 40 working 40 days. Any time earned in excess of this amount will be handled in accordance 41 with the Monroe County Personnel Policies and Procedures. 42 43 2. All annual leave must be approved in advance by the applicable Department 44 Head, Division Director and/or the County Administrator depending on the 45 position held by the requesting employee. The employee shall fill out his Leave 46 Request Fonn and submit it to the Department Head, who has the right to deny an 47 employee's request for annual leave, if granting such leave at that time would be Rev. 12/18/09 - 28 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 detrimental to County operations. Upon such denial, the employee may request the leave at another time. The Department Head is responsible for verifying that the employee does have sufficient accrued leave to cover the period of absence, and should return the leave request to the employee indicating approval or denial, within seven (7) days of receipt of the request, unless a valid reason is given to the employee for the delay. D. ANNUAL LEAVE PAY UPON SEPARATION Payment of annual leave shall be based on the employee's regular rate of pay and terms of separation. E. RESTRICTIONS Annual leave may be used for any purpose; however, it is a privilege incident to County service and is not a right, and may onl§ be used by the employee if taken prior to termination for cause or in accordance with these policies, with the following restrictions: L Annual leave may not be taken until accrued in accordance with these rules. 2. Employees will not accrue annual leave during a leave of absence without pay, a suspension or when the employee is otherwise in a non -paid status. 3. Article 25.2 -Resignations. 4. Employees who leave the County service without proper notice or who are terminated for just cause may be denied payment of accrued annual leave. 5. An employee who leaves the County and wishes to receive payment for annual leave must sign a waiver and general release of any and all claims against the County and its official, managers, supervisors, employees and insurers to receive payment of annual leave. ARTICLE 31 UNIFORMS, TOOLS AND EQUIPMENT 31.1 For employees required to wear a uniform, the County will furnish two sets of shirts and pants for each day the employee is regularly scheduled to work in a workweek, plus one additional uniform, i.e., five-day employees will have 11 sets and four -day employees will have 9 sets, and all on -call employees shall receive an additional 2 sets, not to exceed Rev. 12/ 18/09 -29- 1 15 sets. Bargaining unit employees shall be given their choice of long or short pants, 2 except for those positions for which the County makes the determination that long pants 3 are required. The determination to require long pants will not be arbitrarily made. Such 4 uniforms are not to be worn except while employees are on the job and while traveling to 5 and from the job. 6 7 31.2 Tools and equipment that are normally supplied by the County will be used properly and 8 carefully by employees who require them in their work. It is the responsibility of the 9 employee to use and secure such tools and equipment in such a manner as to minimize 10 the potential for loss or theft. II 12 31.3 Tools and equipment provided by the County will be replaced by the County if they are 13 stolen or broken during normal use and provided proper care and prescribed security 14 measures have been followed and loss or breakage is not due to the employee's 15 negligence or abuse. Loss or breakage due to employee's negligence or abuse subject to 16 discipline 17 18 ARTICLE 32 19 20 REMUNERATION 21 22 32.1 All current bargaining unit employees covered by this Agreement will receive 0% cost -of 23 living -allowance and no merit increases during the term of this Agreement. 24 25 32.2 Monroe County has established a program to recognize County employees who have been 26 in the County Service for Five, Ten, Fifteen, Twenty, Twenty-five and Thirty years. 27 Grant and part-time employees will be eligible for the years -of -service program. 28 29 At the employee's anniversary date, or as soon thereafter as is feasible, the r---so Department must cause a letter to be placed in the employee perwrinel file noting 31 the years of service and must deliver the following, in a lump sum payment, to the 32 employee: 33 a — For 5 years of service, a decorative pin and a $100.00 award; 34 b — For 10 years of service, a decorative pin and a $175.00 award and recognition 35 at the BOCC meeting; 36 c — For 15 years of service, a decorative pin and a $200.00 award and recognition 37 at the BOCC meeting; 39 d — For 20 years of service, a decorative pin and a $350.00 award and recognition 39 at the BOCC meeting; 40 e — For 25 years of service, a decorative pin and a $500.00 award and recognition at 41 the BOCC meeting; 42 e — For 30 years of service, a decorative pin and a $1,000.00 award and recognition 43 at the BOCC meeting; Rev. 12/19/09 - 30 - 1 2 ARTICLE 33 3 4 ENTIRE AGREEMENT 5 6 33.1 The parties acknowledge that during the negotiations, which resulted in this Agreement, 7 each had the unlimited right to make demands and proposals with respect to any subject or matter 8 not removed by law from the area of collective bargaining. They, therefore, each voluntarily and 9 unqualifiedly waive the right for the term of this Agreement to bargain collectively with respect 10 to any matter referred to or covered in this Agreement, or with respect to any subject or matter 11 not specifically referred to or covered by this Agreement. 12 33.2 This Agreement represents the entire agreement between the parties and no other 13 Agreements or practices are binding upon either party hereto with respect to wages, hours or 14 working conditions of the employees covered hereby. The County shall not be obligated to 15 continue any benefits or employee practices which it has given or engaged in prior to the 1i execution of this Agreement unless such benefits or practices are specifically set forth in this 17 Agreement, and past practices of the employer will not be considered in interpreting this is Agreement. i9 33.3 The parties also agree that the County may unilaterally make changes in the terms and 20 conditions not covered in this Agreement without having to bargain over any such decision or its 21 effects. This Agreement expressly permits the County's right to make such changes. 22 ARTICLE 34 23 24 PRINTING AGREEMENT 25 26 34.1 This Agreement shall be printed within a reasonable time by the County. The County L7 shall provide three originals of the contract to the Union. 28 29 ARTICLE 35 30 31 SAVINGS CLAUSE 32 33 .if any article, section, or provision of this Agreement should be found invalid, illegal or 34 not enforceable by reason of any existing or subsequently enacted legislation or by 35 judicial authority, all other articles and sections of this Agreement shall remain in full 36 force and effect for the duration of this Agreement. If such action occurs, the County and 37 the Union shall meet within thirty days for the purpose of negotiating a mutually 38 satisfactory replacement for such provision. 39 40 ARTICLE 36 41 42 DURATION OF CONTRACT 43 44 36.1 After ratification by the parties, this Agreement shall be effective as of October 1, 2009, 45 and shall remain in full force and effect until midnight, September 30, 2010. Rev. 12/18/09 - 31 - 1 BOARD OF COUNTY COMMISSIONERS 2 MONROE COUNTY, FLORIDA 3 4 5 6 By 7 Chai an 8 FEB 17 2010 9 Date: 10 11 12 Attest: U 14 15 BY.1 16 17 23 24 Da a., 7 2010 17 2010 TEAMSTERS LOCAL NO.769 By #JJP Presi ent Date: 1/14 1l G By; `-�- Business Representative Date: L. KOLHAGE, Clerk MONROE COUNTY ATTORNEY AF(P,ROVE AS T F R Lc� . AL ASSIST)T COUNTY ATTORNEY Date a0! D Rev. 12/18/09 - 32 . r *g ! Attachment "A" 2 3 BULLETIN BOARD LOCATIONS 4 5 PUBLIC WORKS STOP 09 6 (MM S) 7 DETENTION FACILITY 8 5501 COLLEGE RD 9 KEY WEST, FL. 33040 10 I I AIRPORTS STOP 03 12 KEY WEST 13 3491 SOUTH ROOSEVELT BLV. 14 KEY WEST, FL 33M 15 16 COURTHOUSE 17 MM 0 STOP 08 18 500 WHITEHEAD STREET 19 KEY WEST, FL 33040 20 21 ROADS & BRIDGES TRAILER STOP 04 22 (by Almort) 23 KEY WEST 24 3593 SOUTH ROOSEVELT BLV. 25 KEY WEST, FL 33040 - -- 26 27 FACILITIES MAINTENANCE 28 (by AIrpoR) STOP 04 29 KEY WEST 30 3s83 SOUTH ROOSEVELT BLV. 31 KEY WEST, FL. 33040 32 33 TRANSFER STATION STOP 010 34 Cuu.IOE MM 21 1I2 35 BUMP ROAD 36 CUDJOE KEY, FL 33042 37 38 PUBUc WORKS STOP 018 39 MARATHON MM 49 40 10600 AVIATION BLV. 41 MARATHON FL 33050 42 4 PUBLIC WORKS STOP 019 44 PLANTATION KEY MM 881/2 45 am OVERSEAS HWY. 46 TAVERNIER FL 33070 47 48 TRANSFER STATION STOP 024 49 KEY LARGO MIN 107 50 11160 COUNTY ROAD 905 51 N. KEY LARGO, FL 330V 52 53 AIRPORT STOP Its 54 MARATHON MM 49 55 9400 OVERSEAS HWY 56 MARATHON, FL 330Q0 57 58 59 TRANSFER STATION STOP O17 60 LONG KEY MMU 61 LONG KEY, FL 33001 62 63 CARD SOUND TOLL FACILITY STOP On 64 SS070 CARO SOUND ROAD MM107 65 KEY LARGO, FL 330V 66 67 MURRAY NELSON CENTER STOP 028 68 102050 OVERSEAS HWY MM 102 69 KEY LARGO, FL 33037 Rev. 12/18/09 - 33 - Attachment "H" GRIEVANCE FORM TF&%SYfVS LOCAL UNION No. 709 $000 S. Orange Avenge bases W. Dhde Highway 5400 - de Ave, No. a Orlando, yL Blot NeAh Mlaml, M. Mot Ven ready FL 3"60 Grievants Name: lob "Title: Complete Address: City: State: Zip: Shift: Work Phone:( Home Phone: Employer Employer Manager: . 1. Grievant's Statement of Grievance: (Describe in detail the action giving rise to the compidint. Specify names, dates, classification, place and site of violation, time. etc....) 2. Specify the Articles) of the agreement which is/are violated: 3. What is the remedy and/or relief sought' - 1 Nereh ankhmbte dw Tums"" Lesal Iffahn ad hr no in the d1/pe gad $@Mks of obit 9rlevaute. Date: Grievant's Signature Date: Steward Signature: -34- Decision of Manager DECISION & APPEAL OF GRIEVANCE Y Date of Dedsion Employers Signature Signature of Union Steward Grievance Sealed: Yee No Dale Case Appealed to: Date gazoAppealed by: Deaf Dedslon of Appeal: Signature of Deciding Employer Officer. Date Signature Union Representative: Date Grievance Sedied: Yes No Case Filed for Arbitration Yes No By: Title -35- S r STATE OF FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION TEAMSTERS LOCAL UNION NO. 769 : AFFILIATED WITH THE INTERNATIONAL: BROTHERHOOD OF TEAMSTERS, CHAUFFEOR3, WAREHOUSEMEN AND : HELPERS OF AMERICA, Petitioner, s V. MONROE COUNTY BOARD OF COUNTY s COMMISSIONERS, s i Respondent. : s Case Nos. RC-93-063 RC-93-064 RC-93-065 Stanton R. Orr, Miami, attorney for petitioner. John D. aronda and Donna M. DiChiara, Miami, attorneys for respondent. A secret ballot election was conducted March 22, 1994, in the following units cgs All full-time and regular part-time suployees employed by the Monroe County Board of County Commissioners in the following classifications airport maintenance technician, airport rescue _ firefighter, airport security guard, - supervisor, animal control officer, animal tender, bridge tender, bridge tender lead worker, building maintenance technician, carpenter, carpenter fore- man, a--ications assistant, coffmuai- cations technician, crew chief, custo- dian, custodian foreman, dispatcher, electrical/electronic technician, elec- trical maintenance technician, electri- cian, electrician foreman, MKS support services manager, EMT/Driver, equipment Operator, equipment operator - roads and bridges, equipment operator/maintenance, heavy equipment operator, maintenance mechanic - facilities maintenance, main- tenance mechanic - roads, maintenance/ - toll collector, maintenance worker I - facilities, maintenance worker I - roads, maintenance worker II, mason, `—' master plumber, mechanic I - fleet -36- RC-93-063 RC-93-064 RC-93-065 management, mechanic III - fleet I management, mechanic II-Penvironment!gl•. management, mechanic =II4-environmental'- management, operator, paiA and body, w ,:twl mechanic I, paint and body mechanic III, painter, painter foreman, paramedic, ,•+"�+% park attendant, plumber, plumber fdtaz =.t .. man, resident park attendant, road tow* r striper, roofer, security guard - -A:: 3:Av airport, security guard - correction !Id facility, security guar$/u.-. correcti-C&O '', foreman, senior communications techaZ O w-q ciao, services manager - fleet manage- ment, services technician, shift •,6 v* mi yA captain/airport rescue, purvey party chief, toll collector, traffic sign coordinator,* transportation driver,.- `i truck driver, and weighmaster:'.:. _} AMAM3 All temporary employees, grant employees, supervisors, and all other employees of the Mamas County Board of County Commissioners. The election results are as follows: I. Approximate number of eligible voters 2. Void ballots I' 3. votes cast for Petitioner Votes cast against participating organization 52 S. Valid votes counted 181 6. Challenged ballots , 7 7. Valid votes counted plus challenged ballots _188 8. Challenges are'not sufficient to affect the results of the election. The Commission VSRiFI88 the results of the election con- ducted March 22, 1994. Petitioner (OR-86-047) received a majority of the valid votes plus challenged ballots. Pursuant to Section 447.307 (3) (b) , Florida Statutes, the Commniesion CBRTIFIBS the Petitioner as the exclusive bargaining representative for employees in the unit described above. Certification number Insn is iggqed to the Petitioner. This order may bqa appealed to the appropriate d;a%riat court of appeal. A notice of appeal must be reogiveLd by the Camomission and the district court of appeal within t„�irty days frees the date of this order. bccept in cases of indigency, the c0grt wi11 -37- } S € RC-93-063 RC-93-064 RC-93-065 require a filing fee and the Commission will require payment for preparing•the record on pppeal. Further explanation of the right to appeal �s provided LU Sections 120.68 and 447.504, Florida Statutes, and,the Florida Rules of Appellate Procedure. Alternatively, a action for reconsideration may be filed. The motion.ymuat be received by the Commission within fifteen days from the date of this order.. The motion shall state the parti- cular points of fact or law allegedly overlooked or misappre- hended by VJK.Commission, ,fiend shall not reargue the merits of the order. For ,.Aurther expl� Code Rule 3,9D-15.005. tian, refer to Florida Administrative It is so ordered. ` HORNS, Chairman, SLOAN and ANTgONy, Commissioners, concur. I BSRRSY-CERTIFY that this : served on each party on Q iMX-k1_ ent was filed and a copy 1994. HYt erk /elm ;. ••tvs e add 3.Saw -38- BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 10/20/10 - KW Department: County Attorney Bulk Item: Yes X No Staff Contact Person: Bob Shillinger #3470 AGENDA ITEM WORDING: Approval of contract rate with Department of Administrative Hearings (DOAH) from $142 per hour to $144 per hour effective retroactively to October 1, 2010, as provided by the Contract and pursuant to F.S. 120.65(11). ITEM BACKGROUND: In January, 2007, Monroe County contracted with DOAH to provide hearing officers to sit as Special Magistrates for Code Enforcement hearings. On February 21, 2007, the Board ratified the Administrative Law Judges Services Contract between Monroe County and the Department of Administrative Hearings (DOAH). On July 18, 2007, the Board approved the First Amendment to the Contract to expand the scope of services to provide hearing officers for beneficial use and vested right determinations. As stated in the Contract, F.S. 120.65(11) requires that the contract rate must be based on a total -cost -recovery methodology. Staff has received notification from DOAH of a rate increase from $142 per hour to $144 per hour, effective 10/1/2010. This rate would also apply to other cases handled by DOAH under contract, such as Planning Commission appeals and BUD hearings. PREVIOUS RELEVANT BOCC ACTION: 2/21/07: BOCC ratified the Administrative Law Judge Services Contract 7/18/07: BOCC approved First Amendment to the Contract to expand the scope of services. 10/15/08: BOCC approved increase in contract rate from $137 per hour to $140 per hour 10/21/09: BOCC approved increase in contract rate from $140 per hour to $142 per hour CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: Approval TOTAL COST: $144 per hour INDIRECT COST: N/A BUDGETED: Yes X No DIFFERENTIAL OF LOCAL PREFERENCE: N/A COST TO COUNTY: Increase from $142 per hour to $144 per hour SOURCE OF FUNDS: 148-60500-530318 REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year APPROVED BY: County Atty , OMB/Purchasing Risk Management DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM # Revised 7/09 State of Florida I: Division of Administrative Hearings Notice As stated in the Administrative Judges Services contract executed between your Agency/Entity and the Division of Administrative Hearings, whereby Section 120.65 (11), Florida Statutes, requires that the contract rate must be based on a total - cost - recovery methodology. The aforesaid rate has been determined to be $144.00 per hour beginning October 01, 2010. For billing questions, please contact Donna Allbritton at (850) 488-9675 Ext. 126. rtONHC,t: uuN (Y A APPROVtD 1 o MOBERTAff. SHILLINGER, JR. CHIEF ASSISTANT COON ATTORNEY BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 10/20/10 - KW Bulk Item: Yes X No Division: County Attorney_ Staff Contact: Suzanne Hutton. #3473 AGENDA ITEM WORDING: Approval to advertise 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: N/A CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval. TOTAL COST: N/A INDIRECT COST: DIFFERENTIAL OF LOCAL PREFERENCE: BUDGETED: Yes No COST TO COUNTY: N/A SOURCE OF FUNDS: NN/A REVENUE PRODUCING: Yes x No AMOUNT PER MONTH Year APPROVED BY: County Atty ZOMB/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 Proceeding (a) Definitions. (1) Local public gficial means any elected or appointed public official holdingacounty of 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 authori . Quasi -Judicial Proceedings and Ex Parte Communications (2) Ex pane communications mean communications made in the absence of one or more of the affected parties. (3) Quasi-iudicial act means the action of public officers applying regulations or rules to facts determined through a decision -making, process. (4) Legislative act means the formulation of policy and adoption of a regulation or rule through which that policy is implemented. M Distinction between quasi-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. jej Ex Parte Communications. (1) Generally Allowed. 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. 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 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. c. Local public officials may conduct investigations and site visits and ma,.y 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 ag tion, 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 Parte 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, 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 assign weight and credibility to such testimony as it deems appKpriate 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 parte 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 M. Deputy Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA Mayor/Chairperson 'MNF10E COUNTY ATT Pa Quasi -Judicial Proceedings and Ex Parte Communications ADDITIONAL BACK-UP 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 hf...//.........1— +..+. n... /OrrATTTTL'O/7--1__ _L nA,,,. ,--_ J, T%'. -I n, . . 0 ^r r — 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. Copyright ® 1995-2010 The Florida Legislature • Privacy Statement • Contact Us % .. to r .. n „_ ic41r+ • rnrrrrro i.__J--- _L o A __ Q♦ i nicion1 n BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 10/20/10 - KW Bulk Item: Yes X No Division: County Attorney Staff Contact: Suzanne Hutton. #3473 AGENDA ITEM WORDING: Approval of a resolution changing Monroe County Personnel Policies and Procedures exemption from application of the P&P, recognizing that disciplinary provisions are not the only mechanism to insure that all persons comply with the policies, especially those prohibiting discrimination and sexual harassment; requiring auto allowances to be handled in conformity with state statute; more explicit language regarding the prohibition against accepting services or gifts; limitations placed on salary increases which may be provided without BOCC approval. ITEM BACKGROUND: During the recent BOCC meetings, particularly the budget hearings, issues were raised regarding procedures for reclassification of positions/salary increases, auto allowances, acceptance of gifts/services, exemption from Monroe County Personnel P&P, specific processes for the County Attorney's Office, etc. The Board directed staff to revisit specific areas in the existing Personnel P&P and Commissioner Wigington requested amending the County Attorney section of the Monroe County Code as necessary to be consistent with the changes made to the Personnel P&P. A companion agenda item will cover a proposed ordinance to change the County Attorney section of the Code. PREVIOUS RELEVANT BOCC ACTION: Approvals of changes to Personnel Policies and Procedures from time to time. 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 An 40MB/Purchasing Risk Management DOCUMENTATION: Included x Not Required _ DISPOSITION: AGENDA ITEM # Revised 2/05 Commissioner Wigington RESOLUTION NO. -2010 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, PROVIDING PROPOSED CHANGES TO PERSONNEL POLICIES AND PROCEDURES; PROVIDING FOR EXEMPT PERSONS TO COMPLY WITH POLICIES AND PROCEDURES ALTHOUGH REMEDIES ARE NOT AVAILABLE THROUGH EMPLOYEE DISCIPLINARY PROCESS; PROVIDING CLARIFICATION OF GIFT POLICY; PROVIDING FOR SUBMISSION OF CERTAIN PERSONNEL ACTIONS TO BOCC FOR APPROVAL; PROVIDING AN EFFECTIVE DATE. WHEREAS, the scope of Monroe County Personnel Policies and Procedures (P&P) provides, "personnel policies, regulations and procedures as adopted shall apply to all personnel in the County Service falling under the jurisdiction of the Board of County Commissioners (BOCC) and any other agency grant, board or department which so requests;" and WHEREAS, the P&P also provides exemptions from application of the P&P to commissioners, contract employees, volunteers, members of various boards and committees, and independent contractors; and WHEREAS, notwithstanding the inability to provide for discipline or remedy for improper behavior of such exempt persons through the county employee disciplinary process, there are other avenues of recourse which can allow the BOCC to require that everyone behaves in an appropriate manner so that all employees are entitled to a decent workplace and not subject to harassment or discrimination; and WHEREAS, past practice regarding job reclassifications and salary increases other than COLAs and merit increases determined by the BOCC during the budget process has recently come into question; and WHEREAS, it'is determined to be in the best interests of the public taxpayers that greater oversight be established for job reclassifications and salary increases other than those provided through across-the-board COLA's and merit increases approved through the budget process; and WHEREAS, County offices have taken different positions on the interpretation and application of the existing gift rule, especially with regard to food baskets and similar type gifts at holiday time; and WHEREAS, the State's Attorney, after addressing the BOCC on this subject, instituted the following rule for his own office: "No State Attorney's Office employee (including the elected official, permanent, part-time, temporary, contract, or volunteer employee) may accept any gift or service of any value from anyone who has, or is reasonably likely to have, business with the State Attorney's Office;" and WHEREAS, the policy sometimes places in a difficult position those employees who are requested because of their jobs to attend meetings where meals are served in order to make presentations to the group (such as a chamber of commerce, Fla. Keys Contractors Assn., TDC functions, etc.), or to become informed as to the issues of concern to the various groups; and WHEREAS, it is determined to be in the best interests of both the public and the employees for the gift policy to be more explicit; and WHEREAS, the BOCC has become aware of a disparity between past county treatment of salaries and auto allowances and Florida Retirement System interpretation of rules, and in the contracts of the administrator and attorney, said contracts having been revised in conformity with FRS interpretation, and previous auto allowances for four non -contract employees, and it is necessary to make the county practice consistent with the FRS interpretation regarding auto allowances; NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Monroe County, Florida, that: 1) The Monroe County Personnel Policies and Procedures shall be amended as follows: A. The second paragraph of the Scope, shall be revised to read: The personnel policies, regulations and procedures as adopted shall apply to all personnel in the County Service falling under the jurisdiction of the Board of County Commissioners and any other agency grant, board or department which so requests. All County officials and employees, shall comply with the standards of conduct set forth herein B. Section 4.08 shall be revised to read: 4.08 SALARY RANGES, PROGRESSIONS, INCREASES No salary adjustment shall be approved unless there is availability of funds, and must be recommended in writing by the Division Director and approved by the County A J_ . . . . . . A. An employee may receive a salary increase by means of a promotion, reclassification or pay range adjustment. An employee reclassified, transferred or hired through promotional opportunity of one pay grade level or higher shall receive the greater of the minimum salary of the pay range or a 5% salary increase. An increase above 5% shall require justification in accordance with Section 4.07 B (2). In no case shall the employee's salary be above the maximum pay range. All 2 increases greater than 7% of the employee's existinu salary shall be submitted to the BOCC for approval. B. There are no provisions in the County Pay Plan for automatic salary advancements, as all increases are to be based on availability of funds, work performance, and other pertinent factors as evaluated by the employee's Supervisor and/or Department Head, and approved by the Division Director and County Administrator, or County Attorney. C. All requests for salary increases shall be processed through the Human Resources office and the Division of Budget and Finance for review and determination of compliance with the County policies and procedures and budgetary control. All requests for salary increases greater than 7% of the employeeT s existing salary shall be submitted to the BOCC for approval. D. MERIT INCREASES 1. A merit increase is a salary increase within the same pay grade, awarded for outstanding County Service. 2. Merit increases are not automatic. 3. The amount of merit increase an employee receives, if any shall be determined by the availability of funds, and the system/procedures proposed by the County Administrator and adopted by the Board of County Commissioners each fiscal year. All salary adjustments must be approved by the County Administrator. 4. An employee shall be eligible for consideration for a merit increase during the budget preparation period after completion of their initial probation period. Unless otherwise approved by the Board of County Commissioners each fiscal year, an employee will receive a Merit Increase on their Anniversary Date (see Section 4.09 Q- 5. New employees hired below the minimum rate would be eligible for consideration six months from the date they are adjusted into the minimum rate. 6. Once an employee has reached the maximum salary amount of the pay grade in which his or her position is classified, the merit increase will be awarded as a one time lump sum payment on the employee's anniversary date (unless otherwise approved by the Board of County Commissioners each fiscal year), unless said position is reclassified to a higher pay grade (See Section 3 regarding reclassifications). Nevertheless, the employee will still be evaluated in accordance with the County evaluation system. All employees are expected to maintain a satisfactory or above performance level. Failure to do so will result in appropriate disciplinary action. 7. The foregoing reflects the current procedure, however the County reserves the right to change or eliminate the procedure whenever necessary. NOTE: Time spent on a leave of absence without pay in excess of thirty days shall be deducted from the employee's length of service record when determining the time required for advancement eligibility. E. COST OF LIVING INCREASES The decision whether to or when to grant a cost of living allowance, as well as the decision of the amount of such increase (if any) will be made in the sole and exclusive discretion of the Board of County Commissioners. F. RECRUITMENT AND RETENTION INCREASES Retention Salary Increase This provision is intended to provide consideration of critical and/or unusual administration problems. A retention salary increase maybe approved, if for 7% or less of the employee's existing salary, at the County Administrator's or County Attorney's sole discretion, and if for more than 7% of the employee's existing salary, at the discretion of the BOOG in accordance with the following provisions: A. If the employee has received a documented bona fide job offer with an employer other than the County and the retention increase is a counter offer to retain the employee in their current position (job offers from other Monroe County BOCC offices, Property Appraiser, Clerk of the Circuit Court, Supervisor of Elections, Tax Collector, Sheriff or other office that reports to the Board of County Commissioners will not be deemed a bona fide job offer with an employer other than the County under this provision). B. Retention salary increase decisions are not grievable through the County's grievance procedure unless it is alleged that such a decision was made based upon unlawful discrimination. C. To be eligible for retention increase consideration, the affected employee must: 1. currently be employed by the County in a career service status position; 2. have been continuously employed in their current position for at least one calendar year prior to the date the bona fide job offer was made; 3. have received at least a "Meets Expectations" rating on their most recent performance evaluation, must currently be performing at an acceptable level, and may not have been issued a written warning within the previous twelve (12) months; and 4. not have received a retention increase with the past twenty-four (24) calendar months from the date the increase request is submitted to Human Resources. The County Administrator, or the County Attorney for personnel in the Attorneys office, has sole authority to determine amount offered as a retention increase within the range of 0% to 2- 70/6 of the affected employee's salary. The County Administrator or County Attorney may approve retention increases as single or multiple salary adjustments; however, if multiple salary adjustments are made for one 4 retention increase, the total of those salary adjustments may not exceed 257% of the affected employee's salary. All retention increases greater than 7% of the employee's existing salary shall be submitted to the BOCC for approval D. The retention salary increase must not place the employee above the maximum for their current pay range. E. Retention increases recommended under this provision are subject to the availability of funds. Procedure: To request a retention increase, the respective Department Head or supervisor shall submit a retention increase request package to his/her Division Director and obtain his/her approval prior to submitting the request to the Human Resources Office. Increase request packages will include, at a minimum, the following documentation: 1. A cover memo addressed to the County Administrator or Co= Attorney with the written recommendation approved by the department head and division director. 2. If the employee has another job offer: (a) Validity of the job offer, preferably copy of the written job offer, (b) The respective division's independent verification of the job offer; (c) Whether the job offer is comparable to the one the employee currently holds with the County. 3. A detail of the training costs that Monroe County incurred on the employee's behalf over the past twenty-four (24) months; 4. summation of the employee's satisfactory job performance (that the employee has performed and continues to perform at least at a "Meets Expectations" level and that he/she has not been issued a written warning within the previous twelve months); 5. that the division's recommended increase, if approved, would not place the employee above the maximum for their current pay range; 6. salary comparison of other employees within the division; 7. recruitment and retention conditions in critical areas as maybe demonstrated by (a) high turnover, (b) declined job offers; or (c) copies of resignation letters from previous employees. 8. Importance of the position in relation to the Action Plans of the department and division. The Human Resources office will review the request and make a recommendation to the County Administrator or County Attorngy. Certification Incentive Salary Increase This provision is intended to provide an incentive for employees to obtain certifications beyond their current minimum job requirements which will enhance the knowledge in their current position and add value to the department as well as the County. Since the Florida Bar Board has rigorous educational, testing and experience requirements for certification in City County, and Local Government Law, for which County Ordinance #39-2004 sets forth a specified bonus eligibility for the certification incentive salary increase is established through the Florida Bar Board and county ordinance, but all other provisions of this section not inconsistent with the Florida Bar rules and county ordinance shall apply. A. Certification incentive salary increase decisions are not grievable through the County's grievance procedure unless it is alleged that such a decision was made based upon unlawful discrimination. B. To be eligible for a certification incentive salary increase consideration, the affected employee must: a. currently be employed by the County in a career service status position; b. have been continuously employed with the County for at least one calendar year prior to the date of registration of the certification; c. have received at least a "Meets Expectations" rating on their most recent performance evaluation, must currently be performing at an acceptable level, and may not have been issued a written warning within the previous twelve (12) months; d d. not exceed two certifications per calendar year (renewal of a certification will not net any additional increase in pay). C. $1,500 will be added to the affected employee's salary. D. The certification incentive salary increase must not place the employee above the maximum of their current pay range. In the event the employee reaches the maximum of their current pay range, the salary increase will be awarded as a one time lump sum payment. E. Certification incentive salary increases recommended under this provision are subject to the availability of funds. The Human Resources office will review the request and make a recommendation to the County Administrator. Procedure: To request a certification incentive salary increase, the respective employee shall complete the Certification Incentive form and obtain approvals prior to registering in the certification course or program. 1. The employee shall complete the form and submit it to the Department Head and Division Director for their approval of the recommendation. 2. The Employee Services Director will review the request and shall approve or deny the request. 3. Human Resources will officially notify the employee of the approval (or denial). 4. Upon satisfactory completion of the certification program, the employee shall provide sufficient proof to Human Resources. Human Resources will prepare and process the PAF form to be effective on the date of certification. For Florida Bar Board certification the County Attorney shall approve the employee's filing to take the certification test and shall process all personnel forms necessary to apply the salary incentive upon proof of the employee becoming certified The employee shall maintain the certification in good standing in order to continue to receive the certification salary increase as specified by ordinance. M A certification salary increase for any employee is treated as a permanent salary increase as long as the employee retains the same position and does not exceed a salary greater than the maximum for his/her nay range_ F. MONTHLY REPORTS TO BOCC The Human Resources office shall provide a monthly report to the Board of County Commissioners as to all personnel actions taken in the calendar month preceding the report C. Section 1.05. C shall be revised to read: 1.05 CODE OF ETHICS Employees shall not accept any gift, favor or service from any member of the up blic who has, or is reasonably likely to have business with the Count Employees who are directed by their supervisor, or requested by a local association of businesses to attend a function at which a meal valued under $50 is served and at which the employee is expected to either make a presentation or take information back to their office for consideration in policy recommendations are not deemed to be accepting a gift D. Section 2.14 shall be revised to read: 2.14 EQUAL OPPORTUNITY POLICY A. The County is firmly committed to equal employment opportunity, and does not discriminate in any employment -related decisions on the basis of race, color, religion, national origin, sex, age, disability or other similar factors that are not job -related. The County's policy of equality of opportunity applies to all organizational levels of the County and to all job classifications. It is the responsibility of each elected or appointed public official, Division Director, Department Head and Supervisor to give the County's non-discrimination policy full support through leadership, and by personal example. In addition, it is the duty of each public official and each employee to help maintain a work environment which is conducive to, and which reflects, the County's commitment to equal employment opportunity. B. All personnel actions shall be based solely on ability and fitness of the individual. C. The Human Resources office shall see that information about job opportunities is readily available to all employees and citizens of the County, and a continuing program shall be conducted to make the Equal Employment policies known to all citizens of the County. W D. In this capacity, the Human Resources office will be responsible for anticipating problems, formulating solutions, presenting complete analysis of alternatives and recommended corrective actions and coordinating the recommended actions with up blic officials, Division Directors, Department Heads and employees. In the implementation of this policy, the County will aggressively seek personnel for all job levels within the organization through upgrading and recruitment from minority group members and women. This policy is specifically included and will be a continuing and essential component of the Personnel Policies and Procedures. E. Harassment of any kind is prohibited and will not be tolerated TMs gekey applies-te all employees (in`•h, depaAffient heads and Japero^rsors),agoarJ > > > buildings or. A violation of this policy will subject an employee (ifle4ud to disciplinary action, up to and including termination of employment. f-esWt in appfepfiate, ....aeu may festdt Ge ough the disciplinary process set forth in these policies and procedures may be considered by the Board of County Commissioners for any other avenues legally available such as but not limited to, contractual remedies no trespass orders injunctive relief, removal of wor lace accommodations which have been abused or through federal or state laws protecting workers in the woLk place. Harassment is defined as verbal or physical conduct which: 1. Denigrates or shows hostility or aversion toward an individual because of his or her race, color, religion, gender, national origin, age, veteran status, marital status, familial status, sexual orientation/preference, or disability/handicap, or that of his or her relatives, friends or associates. 2. Has the purpose or effect of creating an intimidating, hostile or offensive working environment; 3. Has the purpose or effect of unreasonably interfering with an individual's work performance or; 4. Otherwise adversely affects an individual's employment opportunities. Prohibited harassing conduct includes, but is not limited to, epithets, slurs, jokes, negative stereotyping, or threatening, intimidating or hostile acts that relate to race, color, religion, gender, age, national origin, veteran status, marital status, familial status, sexual orientation/preference, or disability/handicap. Prohibited harassing conduct includes written or graphic material that is placed on walls, bulletin boards or elsewhere on the premises or that is circulated in the workplace. The above policy includes, but is not limited to, sexual harassment. Sexual harassment is defined as: 1. Unwelcome sexual advances; 2. Requests for sexual favors; 3. Verbal or physical conduct of a sexual or otherwise offensive nature, particularly where: a. submission to such conduct is made, explicitly or implicitly, a term or condition of employment; b. submission to or rejection of such conduct is used as a basis for decisions affecting an individual's employment; or c. such conduct has the purpose or effect of creating an intimidating, hostile or offensive working environment. 4. Sexually offensive jokes, innuendoes, and other sexually oriented statements or behavior. If You an individual experiences or observes any pfohibited form of harassment of an employee by any person (regardless of the offender's identity or position) , -(peg r e heads, > parties}; �e he she is required to promptly report the incident to'a Division Director, Department Head, the Human Resources Dir-ectef- Administrator or to the County Administrator. The County Attorney Division Directors and Department Heads are responsible for promptly reporting the allegations or concerns to the Human Resources Administrator or the County Administrator. It is encouraged that the individual put such a complaint in writing). Yew The complaint will be immediately investigated and kept confidential to the extent possible. Individuals who make complaints have an obligation to assist and cooperate with the County's investigation. If the County determines that an employee (including public officials. Division Director, Department Head, or supervisor) or third -party has harassed another individual, appropriate remedial action will be taken against the offender, up to and including termination. If the harassment involves a third party such as a contractor, vendor, supplier, or other visitors to County buildings or the workplace, that person may be barred from the premises. The County prohibits any form of retaliation or coercion (including intimidation interference or discrimination) for lodging a bona fide complaint under this policy or for assisting in the investigation of a claim of harassment If an individual experiences or observes any form of retaliation by any person employee or non-emplovee (regardless of the offender's identity or position) he/she is required to promptly report the incident to a Division Director Department Head the Human Resources Administrator or the County Administrator. Division Directors and Department Heads are responsible for promptly reporting the allegations or concerns to the Human Resources Administrator or the County Administrator. It is encouraged that the individual put such a complaint in writing The complaint will be immediately investigated and kept confidential to the extent possible Individuals who make complaints have an obligation to assist and cooperate with the County's investigation. The county will protect individuals who make a complaint to the extent legally possible Any bona fide complaint will in no way be used or held against an employee (or non W employee) nor will it leave an adverse impact on the complaining employee's employment. F. If one believes that the County has violated the equal opportunity policy, as stated in this section, he/she should submit a written complaint to the EEO Coordinator. The EEO Coordinator shall investigate the complaint and respond to the complaint. E. Section 15.01 B & C shall be revised to read: B. Private use of individual vehicles for county business shall be reimbursed for travel mileage in accordance with Monroe County Code, unless an automobile allowance is established pursuant to Section 112 061(7)(f)Florida Statutes The subsection requires that the traveler file a signed statement before the allowance is approved by the agency head: the statement must provide an estimate for the annual amount based on places and distances for an average typical month's travel on official business,• and filing of the statement and approval of allowance shall be repeated at least annual C. Employees who use their personal vehicles for approved County travel shall be reimbursed in accordance with the information reflected on the reverse side of Form #C676. These employees should be aware that they may be subject to periodic odometer audit(s), and that the employee's personal auto insurance is primary payer in case of an accident while or County business. Employees receiving an automobile allowance may still use the form to request reimbursement for meals lodging tolls and parking fees Further, those employees who are receiving an automobile allowance shall not be entitled to file a claim for in -county mileage reimbursement F. Section 4.07 Stwing Rates shall be amended to read: 4.07 STARTING RATES A. The minimum salary established for a position is considered the normal appointment rate for new employees. B. Appointments below or above the minimum salary may be authorized in the following situations: 10 1. In the event an applicant does not meet the minimum qualifications, but is expected to obtain said qualifications within 6 months, the hiring authority may request appointment as a "trainee". In such cases, the employee should be hired at an appropriate rate below the minimum starting salary. 2. If the applicant's training, experience or other qualifications are substantially above those required for the position, the County Administrator may approve employment at a rate above the minimum established for the class, not to exceed 7% above the entrvl�Mfor the position. The need to make appointments in excess of the minimum shall require documentation and specific approval from the County Administrator and, if in excess of 7% above entry level nty pay, approval from the Board of CouCommissioners 2. The above changes shall be incorporated into the Monroe County Personnel Policies and Procedures Manual. 3. This resolution shall become effective upon approval. PASSED AND ADOPTED, by the Board of County Commissioners of Monroe County, Florida at a regular meeting on said Board on the day of , A.D., 2010. Mayor Sylvia Murphy Mayor Pro Tem Heather Carruthers Commissioner Mario DiGennaro Commissioner George Neugent Commissioner Kim Wigington (SEAL) ATTEST: Danny L. Kolhage, CLERK Deputy Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA LE Mayor Sylvia Murphy J P*ASTO ` - JON _ / / f 11. ADDITIONAL BACK-UP PERSONNEL POLICIES & PROCEDURES MANUAL Table of Contents Sections des Preamble.................................................................................2-3 Mission, Vision and Value Statements................................................4 Introduction.............................................................................5-8 1. General Policies...............................................................9-12 2. Employment Policies.........................................................13-22 3. Classification Plan.............................................................23-24 4. Pay Plan ........................................................................25-30 5. Hours of Work.................................................................31-33 6. Holidays........................................................................34-35 7. Leave with Pay.................................................................36-40 8. Leave of Absence..............................................................41-53 9. Standards of Employment, Disciplinary Actions & Appeals..............54-60 10. Employee Complaint/Grievance Procedure................................61-62 11. Separations.....................................................................63-64 12. Soliciting........................................................................64 13. Employee Performance Evaluations.........................................65 14. Employee Insurance Coverage................................................66-69 15. Travel............................................................................70 16. Appearance.....................................................................71 17. Violence in the Workplace.....................................................72-73 18. Children in the Work Environment..........................................74 19. Cash Management Procedures................................................75 20. Fire Alarm Procedures.........................................................76 1 of 77 PREAMBLE ADMINISTRATION CODE OF ETHICS An employee in the public service must always demonstrate the highest standards of personal integrity, truthfulness honesty and fortitude in all public activities in order to inspire public confidence and trust in public institutions. Perceptions of others are critical to the reputation of an individual or a public agency. Nothing is more important to public administrators than the public's opinion about their honesty, truthfulness and personal integrity. It overshadows competence as the premier value sought by citizens in their public officials and employees. Any individual or collective compromise with respect to these character traits can damage the ability of an agency to perform its tasks or accomplish its mission. The reputation of the administrator may be tarnished. Effectiveness may be impaired. A career or careers may be destroyed. The best insurance against loss of public confidence is adherence to the highest standards of integrity, honesty, truthfulness and fortitude. Public administrators are obliged to develop civic virtues because of the public responsibilities they have sought and obtained. Respect for the truth, for fairy dealing with others, for sensitivity to rights and responsibilities of citizens and for the public good must be generated and carefully nurtured and matured. If one is responsible for the performance of others, the reasons for the importance of integrity must be shared with them. They must be held to high ethical standards and taught the moral as «ell as the financial responsibility for the public funds under their care. If one is responsible only for his or her performance, then he or she must not compromise honesty and integrity for advancement, honors, or personal gain. We must strive to be discreet, respectful of proper authority and our appointed or elected superiors, and sensitive to the expectations and the values of the public we serve. We must practice the Golden Rule: doing to and for others what we would have done to and for us in similar circumstances. One should be modest about his or her talents, letting the work spear for itself and be generous in their praises of the good work of our peers and associates. We must be ever mindful to guard the Public Purse as if it were our own. No matter whether an official or an employee, by our own example, we should give testimony to our regard for the rights of others, acknowledging their legitimate responsibilities and not trespassing upon them. We must concede gracefully, quickly and publicly when we have erred and be fair and sensitive to those who have not fared well in their dealings with our agencies and their applications of the law, regulations, or administrative procedures. The only gains one should seek from public employment are salaries, fringe benefits, respect and recognition for work. One's personal gains may also include the infinite pleasure of doing a good job, helping the public, and achieving career goals. No elected or appointed public servant should borrow or accept gifts from the staff or any corporation which buys services from, or sells to, or is regulated by his or her governmental agency. If one's work brings him or her in frequent contact with firms supplying the government, he or she must be sure to pay his or her own expenses. 2 of 77 Public property, funds and power should never be directed toward personal or political gain. We must make it clear by our own actions that we will not tolerate any use of public funds to benefit one's self, family or friends. And finally, we must serve the public with respect, concern, courtesy and responsiveness, recognizing that service to the public is beyond service to oneself. END 3 of 77 r. Y► • r r. � r.:; r. Y► • ►�,.� a �i.� a �i'.� a ►�,'.� a ►�,.a ►�i.:► r.�r.► rr1AA�►►�V-1eif'A&�►a►�.� WOFAA11, ►a� MISSION STATEMENT The mission of Monroe County is to provide outstanding public service responsive to the needs of our citizens, our unique community, and our environment. VISION STATEMENT' Utopia in the Florida Keys Working and learning together to maintain the diverse community by preserving the natural resources and habitat that makes us a unique and preferred place to live and visit! VALUE STATEMENTS We Believe in the Highest of Ethical Behavior as we Sail the Seven "C"'s. Competence — knowledge. We encourage a competent workforce through continuing education and training. Knowledge adds value to the services we provide and increases employee and citizen satisfaction. Creative — new ideas. We are open to new ideas. We believe in taking fresh approaches to overcome challenges while striving to add value to the services we provide to our community'. Committed — career as a calling to public service. We believe that service to government is the highest career calling. A_professional attitude imposes a pledge of excellent performance with a commitment to the organization. Concern - fiscal responsibility. We believe fiscal responsibility demonstrates our respect for the citizens whose taxes support our organization. Fiscal responsibility recognizes that most problems cannot be solved by money alone; however, take seriously our task to safeguard the public trust. Care — positive and supportive work environment. We provide a positive work environment for our employees by recognizing their needs and allowing a balance with their professional and personal lives. We treat everyone with respect. We are compassionate and responsive to the needs of all citizens. Communication - exchange of ideas. We believe that two way communications amongst our organization, our employees, and our citizens is essential. We encourage feedback and the sharing of ideas. By working together, we can share information and improve our services through open government. Continuity — fairness, equality and sustainability. We believe in fairness and equality and place emphasis on truth and honesty in all of our actions. Through the use of strategic planning we ensure the continuity and sustainability of County services and programs. rlP r•7►l aa�,il a:►P1�1 :► ,il aa�,�I aa�,il a.►��1 .►�Iil aa�,�� aa�,il .►��1 :► ,il a�,il 4 of 77 INTRODUCTION INTENT It shall be the intent of the Board of County Commissioners and other grants, agencies or elected officials who so request to adopt these policies and procedures that: A. The employees of Monroe County are productive persons who perform useful County functions. B. There shall be no employees on the County payroll for whom there is no employment need. C. All officials and employees shall complywith and assist in carrying out the personnel program. D. All appointments to the County Service are to be made in accordance with the rules, regulations and procedures established and adopted by the Board of County Commissioners. E. These Policies and Procedures generally cover the information concerning the policies, regulations and benefits for the employees of Monroe County. These Policies and Procedures and the representations made in them do not constitute anv form of employment contract or guarantee. If an employee seeks information which is not covered in these Policies and Procedures, or if an employee wishes clarification of any policy or procedure, he or she should check with his or her Supervisor and/or Department Head. The County, of course, may change its Policies and Procedures with regard to matters covered herein and such changes may not be reflected in these Policies and Procedures at the time the employee reads them. Existing policy as determined from time to time by the County Administrator or the Board of County Commissioners shall supersede anvwritten information previously distributed to employees. F. In accordance with Ordinance #038-1988, the Board of County Commissioners established a Personnel Policies and Procedures Review Board whereby any employee may submit proposed changes to the Monroe County Personnel Policies and Procedures to the Human Resources office at any time. Proposed changes will be discussed by the Review Board and recommendations will be made to the County Administrator who will review said recommendations for his approval. If there are any recommendations that do not meet with the approval of the Administrator, those changes will again be reconsidered by the Review Board. If approved, said changes will be presented to the Board of Commissioners for a final decision. If there is one or more proposed changes on which the Review Board and the Administrator cannot agree, the final decision will be made by the Board of Commissioners. These changes will be adopted by resolution. Forms for proposed changes may be obtained in the Human Resources office. SCOPE For the purpose of expediency, these policies may refer to either the male or female gender, or both with no intent to discriminate. All policies apply to both genders. The personnel policies, regulations and procedures as adopted shall apply to all personnel in the County Service falling under the jurisdiction of the Board of County Commissioners and any other agency grant, board or department which so requests. Any action which these procedures authorize to be taken at a particular level of authorization may be initiated or taken by anyone in a position of higher authority, within the chain of command. 5 of 77 THE COUNTY SERVICE The County Service shall consist of all existing positions and any positions hereinafter created in the County with the following exemptions: A. The Board of County Commissioners and any positions which are exempt under Chapter 69-1321, Section 3, Laws of Florida. B. Other elected officials. C. Members of Boards, Committees and Commissions, unless they are also County employees. D. Persons employed in a professional capacity on a contractual, fee or retainer basis or hired to perform specific services, as defined herein, including but not limited to investigations or inquiries on behalf of the County Commissioners, or a committee thereof, or other elected officials. E. Volunteers. HUMAN RESOURCES It is the responsibility of the County Administrator to render service to the County government in the fields of personnel management and employee relations, and to ensure uniform, fair and efficient personnel administration. In this regard, the County Administrator shall establish and oversee the administration of a Human Resources office, through the Division of Employee Services. In addition to the duties imposed by personnel policies and regulations, it is the responsibility of the County Administrator, through the Human Resources office, to: A. Apply and carry out personnel policies and regulations as adopted by the Board of County Commissioners. B. Foster and develop programs for the improvement of employee effectiveness and morale. C. Conduct evaluations and studies to determine the effectiveness of the personnel program, and periodically submit a report of findings and recommendations to the Board of County Commissioners. D. Ensure that all personnel have been employed in accordance with the provisions of personnel policies and procedures. E. Maintain a classification plan for all employees in the County Service. F. Maintain a pad- plan for all employees in the County Service. G. Develop and administer tests and examinations as deemed necessary to determine the fitness and abilities of applicants for jobs in the County Service, and promotional opportunities. H. Prepare, or have prepared, and submit to the Board of County Commissioners, corrected, revised or additional personnel policies and procedures for their approval. L Perform any other lawful acts considered necessary to carry out the purpose and provisions of the personnel policies and procedures. J. Perform interviewing, background investigations and othernvise pre -qualifying candidates for County employment. 6 of 77 K. Prepare any County Affirmative Action Plan. L. Recruit qualified applicants to fill departmental vacancies. M. Perform induction of all newly -hired personnel including completion of required personnel and payroll forms, arranging physical examinations and providing employee orientation. N. Provide staff support to the Board of County Commissioners in regard to personnel matters. O. Administer B.O.C.C. adopted drug and alcohol programs. RECORDS OF HUMAN RESOURCES The efficient administration of the County's Human Resources office depends on accurate information about the County and each of its employees. In order to keep personnel records up to date, employees must notify their Supervisor and the Human Resources office immediately of any change of name, address, telephone number, whom to contact in case of emergency-, insurance beneficiaries, dependents eligible for family- coverage of insurance, information for income tax withholding, driving status and other similar information. The County respects the privacy of its employees' rights and, in this regard, will keep all information in its personnel files confidential -- to the extent permitted under Florida law. All requests from sources outside the County for personnel information concerning applicants for employment, current employees, and former employees shall be directed to the Human Resources Office. The Human Resources office will release information to outsiders in accordance with the standards as set forth in Administrative Instruction 4903. RISK MANAGEMENT - SAFETY /LOSS CONTROL A. RISK MANAGEMENT It is the responsibility of the County Administrator to protect the County from financial loss due to public liability exposures and/or property damage. This may be accomplished by either the utilization of fully insured or self -insured programs or policy contracts, as approved by the Board of County Commissioners. The Risk Management office will maintain all insurance policies, property schedules, etc., and will properly distribute all insurance premiums to the budgetary units. The County Administrator will institute recognized risk management techniques, with the cooperation of all Division and Department Heads, the County Attorney s office, and Constitutional Officers (where applicable), to further identify potential exposures, recommending to the County Commission the best course of action to properly- protect the interests of Monroe Count-. INSURANCE A. EMPLOYEE BENEFITS (Group Insurance and Workers Compensation) The County Administrator will oversee all employee benefit programs, including, but not limited to Life Insurance and Health Insurance for Board employees, as well as Constitutional Officer employees (if participated in by those entities). All enrollment records, claim files and the proper distribution of expenses `ill be assigned to Emplovee Benefits, N ith final approval of program types and levels of benefits remaining with the Board of County Commissioners. 7 of 77 B. SELF -FUNDED PROGRAMS Mere the Board of County Commissioners has determined that the use of a self -funded program is in its best interest, it «ill be the County Administrator's responsibility to oversee the Administration of said programs. Any proposed change to the self -funded health insurance program that would constitute a material reduction in benefits or change in cost to current employees and retirees that will be presented to the Board of County Commissioners will be preceded by a two week written notice to the affected employees and retirees. C. :NIONROE COUNTY ACCIDENT REVIEW BOARD In accordance with the Monroe County Safety Policies and Procedures, and County Administrator Instructions, the Monroe County Safety/Accident Board functions to prevent accidents through review of accident/incidents reported to the Human Resource Office, and recommends safety -related policies and procedures to the County Safety Office. This Board also serves as the Safety Advisory Committee, and functions under the guidelines as set down in the Administrative Instructions for the function and by-laws of the committee D. ADMINISTRATIVE INSTRUCTION SYSTEM The County Administrator will establish a standardized administrative instruction system for initiating, preparing, controlling, monitoring and promulgating all Monroe County Administrative Policies and Procedures by way of rules and guidelines, which clarify those adopted Monroe County Administrative Policies and Procedures. These Administrative Instructions shall only be further detailing, by instructions or rules, of those Policies and Procedures provided in this manual, where, for ministerial purposes, policy clarifications are particularly applicable. %here conflict may occur, the Board of County Commissioners reserves the authority of final determination as to ministerial function. This system will be structured according to Monroe County Administration Instruction 1000, issued February 2, 1989, but may be deleted, changed, revised or altered at any time by the County Administrator. Reference to these Administrative Instructions will be made throughout these policies. All employees will be responsible for being familiar with and complying with these instructions. Division and Department Heads will be responsible for appropriate dissemination of these instructions. All references to Administrative Instruction should be construed to mean most current revision. Suffix numbers change with revisions. 8 of 77 GENERAL POLICIES SECTION 1 1.01 CAREER SERVICE A. DEFINITION In accordance with Chapter 69-1321 Laws of Florida, as amended, employees designated in this Act, having at least one (1) year of continuous satisfactory- sere -ice, shall be considered career service employees, except as set forth in these policies and procedures. B. APPLICATION FOR CAREER SERVICE Approximately one month prior to the employee's anniversary date, except as provided for in Section 2.04 herein, the Human Resources office will provide the Department Head with notice to evaluate the employee in accordance with Administrative Instruction 4003. The evaluation form shall be fonv aided to the Human Resources office and placed in the employee's personnel file. (See Section 2.04.) If a positive recommendation is made to retain the employee by the appropriate Department/Division Director and approved by the County Administrator, the employee will be eligible for Career Service upon completion of one (1) year of continuous, satisfactory, full-time employment. Temporary employees who transfer to or are hired in a regular County position must serve a 12-month probationary period in the County position before being eligible for Career Service. C. CONTRACT EMPLOYEE The Count- Commission may Naive, at its option, the necessity- for the probationary- service of a contract employee prior to his employment by the County into a regular position under the Career Service rules. In no event, however, may the County waive such probationary requirement unless the affected employee has served at least one (1) year in the capacity- for which the probation has been N aired. 1.02 POLITICAL ACTIVITY A. No employee shall use any promise, reward or threat to encourage or coerce any person to support or contribute to any political issue, candidate or party. B. No employee shall use his official authority as an employee to influence or attempt to influence, coerce or attempt to coerce a political body or to in any way interfere with any nomination or election of any person to any public office. C. Nothing will prohibit any employee from expressing his opinion on any candidate, on issues, or from participating in any political campaign during his off -duty hours. D. Nothing herein contained shall affect the right of the employees to hold membership in, and support, a political party, to vote as they choose, to express opinions on all political subjects and candidates, to maintain political neutrality, and to attend political meetings during off -duty hours. 9 of 77 E. Employees shall at all times comply- N ith all provisions of Section 104.31, Florida Statutes, which is generally stated in part in 1.02 (A) & (B) above, any may be amended from time to time. 1.03 OUTSIDE EMPLOYMENT A. Full-time employees are not restricted from engaging in other employment during their off -duty hours. However, County employment must be considered the primary employment. Employees shall not, directly or indirectly, engage in any outside employment or financial interest which may conflict, in the County's opinion, N ith the best interests of the County or interfere N ith the employee's ability to perform the assigned County job. Examples include, but are not limited to, outside employment which: 1) Prevents the employee from being available for work beyond normal working hours, such as emergencies or peak N ork periods, when such availability is a regular part of the employee's job; 2) Is conducted during the employee's work hours; 3) Utilizes County telephones, computers, supplies, or any other resources, facilities, or equipment; 4) May reasonably- be perceived by members of the public as a conflict of interest or othen`ise discredits public service. B. Employees shall not be instructed or allowed to perform work for private individuals or other governmental agencies as part of his/her County employment except in those instances `here such N ork is part of contract arrangements entered into by the Board of County Commissioners with such private individuals or government agencies, or in those cases where under prior Board of County Commission policy, the employee is to give service in an emergency situation. 1.04 USE OF COUNTY PROPERTY, PROCEDURES OR FACILITIES Equipment, facilities, vehicles, property, or any resource or procedure of the County shall not be used by any employee, or use of same authorized for anyone by an employee for and- reason or purpose beyond that deemed de minimis use by the Internal Revenue Service Code for anything other than County business. The use of same for personal gain or use may be cause for termination. See Administrative Instruction 1004 for additional information concerning use of County vehicles. 1.05 CODE OF ETHICS A. All employees must be aware of, and comply with, Section 112:311 (6) Florida Statutes which currently provides in part: "It is declared to be the policy of the state that public officers and employees, state and local, are agents of the people and hold their positions for the benefit of the public. They are bound to uphold the Constitution of the United States and the State Constitution and to perform efficiently and faithfully their duties under the laws of the federal, state, and local governments. Such officers and employees are bound to observe, in their official acts, the highest standards of ethics consistent with this code and the advisory opinions rendered with respect hereto regardless of personal considerations, recognizing that promoting the public interest and maintaining the respect of the people in their government must be of foremost concern." B. Employees may not, either directly or indirectly, use their official position with the County or information obtained in connection with their employment for private gain, for themselves or others. C. Employees shall not accept and gift, favor or service from any member of the public, including but not limited to Christmas and/or birthday gifts. D. No employee shall make any false statement, certification or recommendation of any employment under and provision of these policies or in and manner, commit or attempt to commit and fraud preventing the impartial execution of the provisions of these policies, with regard to employment, promotion or transfer. 10 of 77 E. Conflict of interest rules shall be in accordance with the established laws of the State of Florida. No Count- employee shall transact any business in his or her official capacity- N ith any business entity- of which that employee is an officer, agent or member, or in which he or she holds a material interest. If an employee is uncertain as to whether lie or she may be in violation of this policy-, clarification mad- be obtained from the Human Resources office. The County Administrator may at any time, require a statement of disclosure from any employee if he has reason to believe that said employee may be in violation of this policy-. The Human Resources office N ill be responsible for investigating any alleged incident of conflict of interest and when needed, the County's legal counsel will interpret Florida Statute 112.311-112.326. If a violation of this policy is found, appropriate disciplinary action may be initiated. F. Employees shall not conduct personal business while in County uniform while on duty Employees shall not consume alcoholic beverages while on duty, nor on off -duty hours while in uniform. G. Employees shall not consume or be under the influence of alcoholic beverages while on duty or in County uniform, nor shall then use, be under the influence of, consume or possess illegal substances while on duty, in County uniform or on County property at any time. It is the intent of Monroe County to create and maintain a drug -free workplace for Monroe County employees, in accordance N ith the Drug -Free Workplace Act of 1988. (See Monroe County Administrative Instruction 4703.) H. Any violation of the provisions of this policy- shall be subject to review and appropriate disciplinary action. If the employee has any doubt as to the application of the policy as it relates to his or her position, the possible violations should be discussed with the Department Head or his or her designee, who shall either approve or forbid the activity, or refer the question to the Human Resources Office. The County Administrator, Division and Department Heads, their Deputies and other employees holding positions of high public trust and/or authority will be held to higher disciplinary and ethical standards than other employees. 1.06 DISCLOSURE OF INFORMATION/RECORDS Information of a sensitive or confidential nature which is obtained in the course of official duties shall not be released by any employee other than by those charged N ith this responsibility as part of their official duties. All county offices shall comply with any request for records and/or information and appropriately disclose such in accordance with the standards as set forth in Administrative Instruction 4903. 1.07 RESTRICTION OF EMPLOY:NIENT OF RELATIVES Restrictions on employment of relatives shall be in accordance with Florida Statute 112.3133 (2) (a) as amended, which currently reads, "A public official may not appoint, employ, promote, or advance, or advocate for appointment, employment, promotion, or advancement, in or to a position in the agency in which he is searing or over which he exercises jurisdiction or control, any individual who is a relative of the public official." The definition of relative will be in accordance with Florida Statute 112.3133(1) (d) and will include Domestic Partner. Nothing set forth herein shall prohibit the employment of more than one (1) member of the same family. The Human Resources Office will be responsible to investigate any alleged incident of nepotism. Upon investigation if it is found that a potential conflict or that a relationship exists that could be interpreted as such, action may be taken so that the situation no longer exists. When needed, the 11 of 77 Countv's legal advisor «ill furnish current information to the Human Resources office on Florida Statute 116.111. Vliere a State or Local statute regarding nepotism exists which is more restrictive than this polio-, the eligible applicant should follow the State and Local statute in lieu of this policy. Definition: Domestic Partner' - "Domestic Partners" are two adults who have chosen to share one another's lives in a committed family relationship of mutual caring. Two individuals are considered to be Domestic Partners if- (1) they consider themselves to be members of each other's immediate family; (2) they agree to be jointly- responsible for each other's basic living expenses: (3) neither of them is married or a member of another Domestic Partnership; (4) they are not blood related in a way that would prevent them from being married to each other under the laws of Florida; (5) each is at least of the legal age and competency required by Florida Law to enter into a marriage or other binding contract; (6) they each sign of Declaration of Domestic Partnership as provided in for Section 14.03 (7) they reside at the same residence. 1.08 VOLUNTEERS Monroe County recognizes the importance of work performed by volunteers. The Department Head will be responsible for obtaining authorization through the Human Resources office before allowing work to be performed by anyone on a volunteer basis. Volunteers will not, under any circumstances, be considered County employees, but will be responsible for following proper procedures and schedules as outlined by the Department Head. (See Section 8.01 I regarding voluntary Emergency- Response Team for County employees.) 1.09 VETERANS PREFERENCE IN INITIAL EMPLOYMENT If no qualified applicant is selected in-house after a seven (7) calendar day posting period, available positions will then be offered to the general public, unless in-house and general public notice are authorized by the Director of Human Resources concurrently. Eligible veterans and spouses of veterans will receive preference in initial employment with the exception of those positions which are exempt pursuant to Florida's Preference LaNv { Chapter 295 Florida Statutes (1987)'1 . i Resolution 081-1998 12 of 77 EMPLOYMENT POLICIES SECTION 2 2.01 APPOINTING AUTHORITY The Board of County Commissioners shall be the appointing authority for the County Administrator and County Attorney. Ali other positions under the jurisdiction of the Board of County Commissioners shall be employed and supervised by the County Administrator. Employment of Division and Department Heads «ill require the confirmation of the Board of County Commissioners. The County Administrator will be responsible for: A. Approval of all changes in employee status ensuring that all changes are in accordance «ith the Personnel Policies and Procedures and the Pay/Classification Plan. B. Ensuring that all positions in all Divisions have been fairly and equally evaluated, rated and classified in accordance «ith Personnel Policies and Procedures and the Pay/Classification Plan. 2.02 POSITION CONTROL A. All positions in the County Service are established and maintained through a budget each fiscal near, in accordance «ith procedures provided by the Board of County Commissioners. B. The establishment of ne« or additional positions can only be authorized by the Board of County Commissioners and the County Administrator, subject to adequate justification of need and availability of funds. C. Personnel to fill approved ne« positions shall be appointed after the position has been evaluated, classified and assigned a pad- grade. 2.03 T-YTES OF EMPLOYMENT A. Original employment is subject to budgetary restrictions. VIen a person is initially employed in a position in County Service, lie shall be employed in at least one of the following types of original employment status: 1. Full -Time Regular Employee 2. Substitute Employee 3. Temporary Employee 4. Emergency- Temporary Employee 3. Part -Time Employee 6. Trainee 7. Contract Participation in the Social Security program and the Florida State Retirement System «ill be in accordance «ith the rules and regulations governing said programs. Arty employee paid on an hourly basis «ill not be eligible for fringe benefits. B. Definitions ot types of original employment: 13 of 77 1. Full -Time Regular Employee a. Full -Time Regular employment «ill be made to a classification for regularly budgeted Count- positions, working 25 hours or more per N eek. b. A Full -Time Regular employee shall be eligible for all County fringe benefits as set forth in these policies. c. An employee searing in a full-time regular position shall be eligible for career service status as described in Section 1.01. 2. Substitute Employee a. Substitute employment may be made to fill positions for which leaves of absences are granted to a regular employee. b. Substitute employment shall be only for a period of time for which the regular employee is granted leave. c. A substitute employee shall not be eligible for County fringe benefits. d. A substitute employee shall be exempt from career service status. 3. Temporary Employee a. Temporary employment may be made when the work of a department requires the services of one or more employees on a seasonal or intermittent basis, or in a position not classified as a regular County position. b. An employee shall not be allowed to serve on temporary employment of more than 12 consecutive months or, in the case of intermittent employment, for more than 1,040 hours during any 12-month period, except as set forth below. c. A temporary employee shall not be eligible for County benefits or paid holidays, except as stated in 'e' below. d. A temporary employee shall be exempt from career service status. e. All employees who are employed under special grants/projects shall be temporary employees throughout the duration of the grant/project. Such employees shall at no time be considered regular employees of the County, and shall only have the rights of temporary employees as set forth in these policies and procedures, except as might be specifically- set forth in the special grant or project requirements. Grant employees, who do not qualify as temporary employees, are entitled to the same benefits as a regular employee except for Career Service status, and any benefit not eligible for reimbursement under the grant funding for the position. 4. Emergency- Temporary Employee a. Emergency- temporary employment may be made when a short-term emergency- exists. 14 of 77 b. Emergency temporary employment may be made without regard to the person's training or experience. c. No person shall be given one or more emergency employments for more than three (3) calendar months. d. An Emergency Temporary Employee shall not be eligible for County fringe benefits. e. An employee hired on an emergency basis shall be exempt from career service status. 3. Part -Time Employee An employee is to be considered part-time if the employee works less than twenty-five (23) hours per week. The salaried part-time employee who works at least twenty (20) hours per week will accrue vacation and sick leave according to scheduled work hours. Anyone working less than twenty (20) hours per week will not accrue sick or annual leave. 6. Trainee Employee An employee appointed to fill an established position on a regular full-time or part-time basis shall be given trainee status when qualified applicants are not available for the position and the employee does not meet the minimum training and experience requirements for the position. (Refer to Section 4.07.) 7. Contract Employee Anyone whose employment is project specific will be a contract employee. Said employee(s) will not attain Career Service Status. Each proposed contract will be submitted by the County Administrator to the Board of Commissioners for approval. 2.04 PROBATIONARY PERIOD A. The standard probationary period for new employees will be twelve (12) months from the date the employee begins working as a regular employee for the County. If at any time during the probationary period it is determined that the employee does not meet performance standards, the employee may be terminated without recourse. The County Administrator, or a designee, shall either: (1) approve, in writing, retention of the employee, at which time the employee shall be granted career service status: or (2) decide that the probationary period will be extended for no longer than an additional 90 days if the employee has not met performance standards : or (3) in the event the County shall fail to approve the employees' retention the employee shall automatically be separated from employment with the County, said separation being absolutely final, with no rights of appeal to any authority, including the grievance procedure contained herein. Temporary employees, Federal or State Grant employees as N ell as employees originally hired under the CETA Program will retain their original date of hire if transferred to or hired in a regular County position for use in procedures governing fringe benefits and evaluation purposes, when applicable. Said employee must then serve the standard 12-month probationary period, before becoming eligible for career service status. B. During the probationary period, the Department Head or duly -appointed representative must observe the employee's work habits, attitude and attendance to see if continued employment in the job is desirable. C. In the event an employee receives a promotion through the promotional opportunity process, said employee will serve a 90 day probationary period, or the remainder of their original probationary period, 15 of 77 whichever is greater. If during this probationary period the employee does not meet performance standards, he or she may be terminated withright of appeal if recommended by the Department Head and the Division Director and approved by the Administrator, but will be able to apply for another County position through the promotional opportunity system for I year, after which time he or she must wait until a desired position is open to the public. D. Any employee whose position evolves into accepting additional or different duties and/or responsibilities within the same department may be reclassified to another pay grade and/or title upon recommendation of the Department Head and Division Director and approved by the Administrator but will not serve an additional probationary period. (See Section 3.04 and 3.05.) 2.05 DEFINITION OF SERVICE A. Creditable Service shall be defined as service during which the employee was on the payroll of the County, or on approved leave of absence without pad-. B. An employee's continuous service date shall be established as the most recent date of hire and may not precede the date of actual job performance. C. Authorized leaves of absence to the extent provided in Section 8 of these policies shall not be considered a break in service effective at the end of the employee's regular shift on the last dad- ofN ork. D. If an employee has a break of service of 48 hours or more, he/she cannot be reinstated to his/her former employment status. If he/she is selected for County employment after such a break in service, he/she must begin as a new employee in all respects, except for Retirement Benefits which are governed by Florida Statutes. E. Any unauthorized leave without pay for three consecutive work days or more may be considered a break in service, and may result in termination. 2.06 MEDICAL E-NAIINATIONS A. In order to maintain a vigorous and healthy work force the County shall require post offer medical examinations by a physician designated by the County. B. The County Administrator may require that an employee submit to a physical and/or psychiatric examination by a physician or other qualified practitioner at any time during their employment, which may include blood and/or urine testing for drug or alcohol usage. Charges for same will be the responsibility of the County. Grant Programs will provide funding for medical examinations for their employees in their respective budgets. C. Should an examination result in disclosure of inability to meet the required minimum standards of the specific occupation, the results of the examination shall be reviewed by the Human Resources office and the employee's Department Head and/or Division Director. Findings and recommendations shall be fornvarded to the County Administrator for final disposition. Payment of any expense incurred by the applicant/employee other than the initial examination required by the County will be the responsibility of the applicant/employee. D An employee determined to be physically or mentally unfit to continue working in his/her current classification may be terminated, but may apply through the promotional opportunity system for any available 16 of 77 position for which said employee is determined to he qualified as «ell as physically and mentally fit to perform all required duties of the position. Said employee will have promotional opportunity rights for one year after his/her termination date. E. If a Department Head has reasonable suspicion that an employee is under the influence of, or using alcoholic or illegal substances, that Department Head may require that said employee he examined by a physician who may include blood and/or urine testing. 2.07 BASIS FOR CHANGE OF STATUS Selection of applicants for new hire and in-house promotion shall he based on the applicant's ability to perform the job as outlined in the job description of the position being filled. The job description shall identify the specific knowledge, shills, and abilities necessary for the successful performance of the duties of the position. An evaluation of the applicant's knowledge, skills, and abilities as reflected in education, experience, licensure or certification as outlined on the employment application shall he compared to the required minimum qualifications of the position. All applicants who appear to possess the required minimum qualifications shall he evaluated according to uniform and consistently applied selection techniques established by Personnel Policies and Procedures. These selection techniques shall he designed to provide maximum validity, reliability, and oNectivity and result in selection from among the applicants who are most qualified for the position. In determining change of status as a result of demotion, recall from layoff or transfer, job performance shall he the sole criterion. Job performance being equal, length of continuous service shall he the criterion. 2.08 SELECTION PROCESS All interviews whether for new hire or in-house promotion must follow the interview procedures outlined in Administrative Instruction 4705. 2.09 TRANSFERS A. The County Administrator may, at any time, transfer an employee from one area to another and/or from one position to another when he determines that it is in the best interest of the operation of the County to do so. Transfers will he made by the County Administrator based upon a recommendation by the employee's Department Head and Division Director. B. Employees will he notified in writing of the County Administrator's decision to transfer them. Employees who claim that a transfer is made arbitrarily and capriciously or that it is being recommended for disciplinary reasons may appeal a transfer decision pursuant to Section 10 (Employee Complaint/Grievance Procedure). 2.10. EMPLOYEE TRAINING The County may require any employee to attend any and all training deemed necessary to perform his or her job duties adequately- and safer-. Prior to employment with Monroe County, it is the applicant's responsibility to provide proof of completion of said training requirements. Once employed, any certification or training deemed necessary for continued employment is to he paid by the individual with reimbursement made after successful completion. See 2.11, item A. 17 of 77 2.11 EDUCATIONAL ASSISTANCE PROGRAM A. EDUCATIONAL ASSISTANCE POLICY' The County may provide financial assistance to County employees for educational courses which are applicable to the employee's field of work, or of such nature and quality to directly contribute to the employee's value and potential growth in the County service. Employees required to maintain training and certification requirements as a condition of employment are also eligible for this program. In the case of a degree -seeking student; although attainment of said degree may provide job enhancement for the employee, courses taken in the pursuit of the degree must have some relation to County employment. B. ELIGIBILITY An employee will be considered eligible for participation in the Educational Assistance Program if he has been a full-time employee of the County for one year or more, and is so recommended by the Supervisor and Department Head. An exception may be made for those employees referred to in Ordinance No. 008-1987, as approved by the Board of Commissioners. C. APPLICATIONS An Employee must submit the completed Request for Educational Assistance Form to the immediate Supervisor and Department Head for approval prior to the employee enrolling in the course. The Department Head shall review the employee's eligibility to participate in the Educational Assistance Program and shall be responsible for the administration of the program. Upon enrollment in the course, the employee shall submit to the Department Head the enrollment receipt and textbook receipt. Upon completion of the course, the employee shall submit to the Department Head the proof of successful completion. The tuition and textbook receipts, the Audit Slip or Purchase Order and the proof of successful completion will be sent to the Finance Department for processing. A copy of all the documentation will be sent to the Human Resources office and placed in the employee's personnel file. D. TIME OFF FROM NVORK Qualified employees may be permitted time off from work with pay to attend educational training classes or seminars which are related to their job duties but which are not available during non- working hours, if approved by the applicable Department Head and/or Division Director. Allowable time off will be restricted to a maximum of 160 hours in any calendar year unless specifically othenv ise approved by the County Administrator. Employees are attending this training on a volunteer basis and time allowed for attending such training does not constitute hours worked for the purpose of computing required overtime payments. See Florida Statutes 112.063 18 of 77 E. REIMBURSEMENT 1. Upon the successful completion of approved courses, the employee «ill be eligible for reimbursement of tuition, textbooks, online access fees, distance learning fees, and lab fees. The employee must present a certification of successful course completion and a paid receipt for tuition, textbooks, online access fees, distance learning fees, and lab fees to the Department. Requests for reimbursement must be made within sixty days after completion of the course. 2. Textbook reimbursement allowance is limited to $123 per course. The employee is responsible for paring any difference. 3. Reimbursement for tuition will be made only to employees who are on the active payroll when payment is due. 4. Where tuition is covered under benefits from the Veterans Administration or a philanthropic source, qualified employees may participate only in the "time off from work" feature of the program. 3. Reimbursement under the Educational Assistance Program constitutes income to the employee. The County must withhold tees from this income and report to government agencies in the same manner. 6. Employees must provide their own transportation to and from training. 7. Refunds shall be limited subject to the availability of funds and the number of participants in the program. 8. This program may be amended or terminated at anv time, however, such amendment or termination N ill not affect any courses of stud- previously approved. F. CONDITIONS OF REIMBURSEMENT Employees who obtain reimbursement for anv educational assistance program shall remain with the County at least one (1) year after completion of courses, othen`ise any reimbursement which N as made by the County to the employee shall be refunded to the County, if the employee terminates within less than one (1) year from date of completion of educational assistance courses. Further funding to the County shall be accomplished by deducting all reimbursement due from the employee's final paycheck. 2.12 EMPLOYEE SAFETY It is the responsibility of the County to promote and pursue a safe and healthy environment for all employees. Monroe County has a viable safety program administered and enforced by the Monroe County Safety Administrator according to the Safety Policies and Procedures adopted by the Board of County Commissioners. Employees N ill observe all safety rules and regulations established by the State of Florida and County Government. Division Directors, Department Heads and Supervisors are responsible for the observance of those rules within their jurisdiction. Failure to comply may result in disciplinary action. 2.13 PROMOTIONAL OPPORTUNITIES 19 of 77 A. It is the policy of the Board of County Commissioners to consider qualified County employees for promotional opportunities before applicants from the general public are considered. An employee must remain in his or her respective position for a period of at least six (6) months before transferring to another position through the Promotional Opportunity system. If it is thought to be in the best interest of the County to waive this rule, prior approval of the appropriate Division Director(s) and the County Administrator must be obtained. Please review Section 2.04 Probationary Period. Promotional Opportunities «ill be posted on bulletin boards throughout the County system for seven (7) calendar days. B. An eligible employee wishing to apply for a promotional position «ill complete the Promotional Opportunity Application Form within the seven (7) day period (date of posting is day one (1)) and submit it to the Human Resources office. The Human Resources office will review these completed forms and forward all in-house applications to the Department with the vacancy for consideration. C. During the seven (7) days the position is posted, anv qualified County applicant is to be given preference in the vacant position. All Promotional Opportunity applications must be reviewed by the department with the vacancy. It is the responsibility of the hiring department to review in-house applications and conduct interviews for qualified County applicants. Any qualified employee filing a Promotional Opportunity within the required seven (7) day period is to be considered a priority. In the event the Promotional Opportunity is not received within the seven (7) day period, the in-house employee shall lose preferential treatment. D. Eligible veterans and spouses of veterans will receive preference in initial employment pursuant to Florida's Veterans' Preference LaN {Chapter 295, Florida Statutes', N ith the exception of those positions which are exempt under said law. 2.14 EQUAL OPPORTUNITY POLICY A. The County is firmly committed to equal employment opportunity, and does not discriminate in any employment -related decisions on the basis of race, color, religion, national origin, sex, age, disability or other similar factors that are not job -related. The County's polio of equality of opportunity applies to all organizational levels of the County and to all job classifications. It is the responsibility of each Division Director, Department Head and Supervisor to give the County's non-discrimination polio full support through leadership, and by personal example. In addition, it is the duty of each employee to help maintain a work environment which is conducive to, and which reflects, the County's commitment to equal employment opportunity. B. All personnel actions shall be based solely on ability and fitness of the individual. C. The Human Resources office shall see that information about job opportunities is readily available to all employees and citizens of the County, and a continuing program shall be conducted to make the Equal Employment policies known to all citizens of the County. D. In this capacity, the Human Resources office will be responsible for anticipating problems, formulating solutions, presenting complete analysis of alternatives and recommended corrective actions and coordinating the recommended actions with Division Directors, Department Heads and employees. In the implementation of this polio, the County will aggressively seek personnel for all job levels within the organization through upgrading and recruitment from minority group members and women. 20 of 77 This policy is specifically included and «ill be a continuing and essential component of the Personnel Policies and Procedures. E. Harassment of any kind is prohibited and «ill not be tolerated This policy applies to all employees (including Division Directors, department heads and supervisors), agents and third -parties such as contractors, vendors, suppliers, and other visitors to County buildings or workplaces. A violation of this policy «ill subject an employee (including Division Directors, department heads or supervisors) to disciplinary action, up to and including termination of employment. A violation of this policy by any third party «ill result in appropriate action, which may result in the person(s) being barred from the County premises. Harassment is defined as verbal or physical conduct which: 1. Denigrates or shows hostility or aversion toward an individual because of his or her race, color, religion, gender, national origin, age, veteran status, marital status, familial status, sexual orientation/preference, or disability/handicap, or that of his or her relatives, friends or associates. 2. Has the purpose or effect of creating an intimidating, hostile or offensive working environment; 3. Has the purpose or effect of unreasonably interfering with an individual's work performance or; 4. Othernvise adversely affects an individual's employment opportunities. Prohibited harassing conduct includes, but is not limited to, epithets, slurs, jokes, negative stereotyping, or threatening, intimidating or hostile acts that relate to race, color, religion, gender, age, national origin, veteran status, marital status, familial status, sexual orientation/preference, or disability/handicap. Prohibited harassing conduct includes written or graphic material that is placed on walls, bulletin boards or elsewhere on the premises or that is circulated in the workplace. The above policy includes, but is not limited to, sexual harassment. Sexual harassment is defined as: 1. Unwelcome sexual advances; 2. Requests for se--,�ual favors; 3. Verbal or plivsical conduct of a sexual or othen` ise offensive nature, particularly N liere: a. submission to such conduct is made, explicitly or implicitly, a term or condition of employment; b. submission to or rejection of such conduct is used as a basis for decisions affecting an individual's employment; or c. such conduct has the purpose or effect of creating an intimidating, hostile or offensive working environment. 4. Sexually offensive jokes, innuendoes, and other sexually oriented statements or behavior. If you experience or observe any prohibited harassment by any person (including Division Directors, department heads, supervisors, employees or third -parties), you are required to promptly report the incident to a Department Head, the Human Resources Director or to the County Administrator. (\\'e encourage you to put such a complaint in writing). Your complaint will be immediately investigated and kept confidential to the extent possible. Individuals who make complaints have an obligation to assist and cooperate with the County's investigation. If the County determines that an employee (including Division Director, Department Head, or supervisor) or third -party has harassed another individual, appropriate remedial action will be taken against the offender, up to and including termination. If the harassment involves a third party such as a contractor, vendor, supplier, or other visitors to County buildings or the workplace, that person may be barred from the premises. The County prohibits any form of retaliation against an employee or third party for lodging a bona fide complaint under this policy or for assisting in the investigation of a claim of harassment. 21 of 77 F. If one believes that the County has violated the equal opportunity policy, as stated in this section, he/she should submit a written complaint to the EEO Coordinator. The EEO Coordinator shall investigate the complaint and respond to the complaint. 2.15 EMPLOYEE RECOGNITION A - EMPLOYEE OF THE MONTH/YEAR PROGRAM Monroe County has established an Employee Service AN and which is designed to recognize employees N ho demonstrate superior performance and dedication to their work which is above and beyond the call of duty. (See Monroe County Administrative Instruction Series 4000.) The employee selected for the month shall be awarded a $100 United States Savings Bond and an appreciation plaque. The employee of the year shall receive a -I" o increase, and an appreciation plaque. B - YEARS OF SERTICE PROGRAM Monroe County has established a program to recognize County employees who have been in the County Service for Fire, Ten, Fifteen, Twenty, Twenty-five and Thirty rears. Grant and part-time employees N ill be eligible for the rears -of -service program. At the employee's anniversary date, or as soon thereafter as is feasible, the Human Resources office must cause a letter to be placed in the employee's personnel file noting the years of service and must deliver the following, in a lump sum payment, to the employee: a - For 5 rears of service, a decorative pin and a $100.00 aN ard; b - For 10 years of service, a decorative pin and a $175.00 award and recognition at the BOCC Meeting; c - For 15 years of service, a decorative pin and a $200.00 award and recognition at the BOCC Meeting; d - For 20 years of service, a decorative pin and a $350.00 award and recognition at the BOCC Meeting; e - For 25 rears of service, a decorative pin and a $500.00 awand and recognition at the BOCC Meeting; f - For 30 years of service, a decorative pin and a $1,000.00 award and recognition at the BOCC Meeting. 22 of 77 CLASSIFICATION PLAN SECTION 3 3.01 CLASSIFICATION PLAN A. SCOPE The Classification Plan provides for a systematic and equitable arrangement of job classes and provides for a complete inventory of all County positions. The purpose of the plan is to group various positions into related classes based upon the range of duties, responsibilities and level of work performed. B. COMPOSITION OF THE CLASSIFICATION PLAN The Classification Plan comprises written job descriptions for each class of work included in the County service. Job descriptions are intended to be a general outline of job duties performed by employees in a particular job. They are used as a guide in recruiting and examining candidates for employment, in determining the lines of promotion and developing training programs, as guidelines in determining salary relationships and in providing uniform job terminology to convey the same meaning to all concerned. Job descriptions may be changed from time to time by the County. This change may expand or reduce the job duties of any job classification. Employees N ill be given as much advance notice of a change in their jobs as is practicable. The job descriptions are maintained by the Human Resources office and should be reviewed and updated annually, or whenever a change occurs in the duties of any position. Each job description will be approved by the Department Head, the Division Director, and the County Administrator. Each employee will receive a copy of his or her respective job description at the time of his or her employment, and any time there is a change in his or her job description. 3.02 POSITION AUDIT PROCEDURE The County Administrator is charged with the responsibility of initiating position audits of any or all County service positions at any time. Other position audits may be initiated by written request to the County Administrator from the Department Head or the Division Director in which the specific position is located, or the incumbent of the position to be audited. All requests must be approved by the Division Director. Position information will be gained through completion of a Position Information Questionnaire (PIQ) by the incumbent or by the Supervisor of the position if the position is vacant, and through field studies of the position, which may include a personal visit with the position incumbent by a representative of the Human Resources office. The applicable Department and Division Director should review and make recommendations to the County Administrator through the Human Resources office on all proposed new positions, changes, and position descriptions. 3.03 DETERMINATION OF CLASSES A. The Human Resources office upon certification of funds and findings that the proposed class or classes are needed, shall propose new or revised classes ofN ork as N ell as the abolition of existing or obsolete classes, to the County Administrator for appropriate action. 23 of 77 B. Whenever an employee's position is abolished under this section, said employee shall have first consideration for a position in a similar classification that may arise in the County service for a period of one rear. However, if that employee refuses an offer for a similar position or, if that employee within the one -rear period elects to take any position in the County service, said employee shall be removed from preferential consideration. 3.04 ALLOCATION AND RECLASSIFICATION OF POSITIONS A. The Human Resources office, after having determined the content of the positions and having received the certification of funds and findings that the proposed class or classes are needed, shall propose new or revised classes ofN ork as N ell as the abolition of existing or obsolete classes, to the County Administrator for appropriate action. Recommendations for changes may be made by the Division Director, who must submit sufficient documentation for the change, including assurance(s) that the respective departmental budget contains sufficient funds. B. An employee may be reclassified to a different title and/or pay grade at any time the County Administrator deems appropriate, after receiving good and sufficient documentation. A temporary reclassification does not constitute a promotion or demotion. A change in title and/or pay grade which results from an evolution into a reduction of duties and/or responsibilities does not constitute a demotion. 3.05 STATUS OF AN INCUMBENT IN A RECLASSIFIED POSITION When the incumbent of a position, through diligent application of work, is officially assigned more difficult and significant additional responsibilities and duties so that it appears as if the position warrants reclassification to a higher class, the Human Resources office shall perform a field study of the present duties and responsibilities of the position. If it is determined after recommendation by the Department Head, Division Director and Human Resources that the position should be reclassified, the County Administrator may require that the incumbent undergo a prescribed test of fitness, depending on the conditions of the reclassification and the nature of the position to be reclassified before approval. A revised job description will be submitted by the Department Head for approval by the Division Director and the County Administrator which includes the additional duties of the position. An employee reclassified in this manner will not serve an additional probationary period as a result of this reclassification. 3.06 POSITION CONTROL All positions are established and maintained through a budget each fiscal year in accordance with established budget and accounting procedures. The establishment of a new or additional position can only be based on adequate justification of need and the atiTailability of funds. Such additions must be approved b� the County Administrator and the Board of County Commissioners. The provisions herein do not relate to the Pay Plan, but to position statuses created by need and necessity only. The Division of Employee Services shall maintain a position control system in the office of Human Resources. Important: All additions, revisions, reclassifications or other personnel actions having a financial impact on the County shall be reviewed by the Human Resources office and the Division of Budget and Finance and approved by the County Administrator. 24 of 77 PAY PLAN SECTION 4 4.01 PURPOSE The Pay Plan is designed to provide a fair and equitable method for payment of employees in the County service. It also establishes a set of rules and a uniform system of administration. 4.02 ESTABLISHMENT OF THE PAY PLAN The Pay Plan shall be directly related to the Classification Plan and is the basis for payment of employees in the County service. This plan shall be established N ith consideration being gi�-en to the follo�` ing factors: A. Relative difficulty and responsibilities existing bet`een various classes ofN ork. B. Prevailing «age scales, for similar types of work, found in public and private industry in the local labor market. C. Availability of qualified personnel. D. Economic conditions found in the area. E. Fiscal policies of the Board of County Commissioners. 4.03 AMENDMENTS The County Administrator shall make amendments to the Pay Plan when, in his discretion, economic conditions, labor supplies, or other considerations indicate a need for such action. Division Directors may recommend to the County Administrator possible amendments to the Pay Plan by providing sufficient justification to make an evaluation of the causes and conditions requiring the change within the confines of their respective departmental budget. 4.04 PAY PLAN REVISIONS The Board of County Commissioners must approve the County Administrator's recommended Plan of Compensation and subsequent revisions for approval and adoption. 4.05 ADMINISTRATION The Human Resources office, in conjunction with the Division of Budget and Finance, shall have the responsibility for the day to day administration of the compensation plan. Approval of all hiring rates and other payroll changes shall require approval of the County Administrator in accordance with these personnel policies. 4.06 APPLICATION OF THE PAY PLAN All employees shall be employed and paid in accordance with the rates and policies established by the Pay Plan for the specific job classification under consideration, unless othenvise stipulated in these policies. 25 of 77 4.07 STARTING RATES A. The minimum salary established for a position is considered the normal appointment rate for new employees. B. Appointments below or above the minimum salary may be authorized in the following situations: 1. In the event an applicant does not meet the minimum qualifications, but is expected to obtain said qualifications within 6 months, the hiring authority may request appointment as a "trainee". In such cases, the employee should be hired at an appropriate rate below the minimum starting salary. 2. If the applicant's training, experience or other qualifications are substantially above those required for the position, the County Administrator may approve employment at a rate above the minimum established for the class. The need to make appointments in excess of the minimum shall require documentation and specific approval from the County Administrator. 4.08 SALARY RANGES, PROGRESSIONS. INCREASES No salary adjustment shall be approved unless there is availability of funds and must be recommended in writing by the Division Director and approved by the County Administrator. A. An employee may receive a salary increase by means of a promotion, reclassification or pad- range adjustment. An employee reclassified, transferred or hired through promotional opportunity of one pay grade level or higher shall receive the greater of the minimum salary of the pad- range or a 5° o salary increase. An increase above 5°% shall require justification in accordance with Section 4.07 B (2). In no case shall the employee's salary be above the maximum pad- range. B. There are no provisions in the County Pay Plan for automatic salary advancements, as all increases are to be based on availability of funds, work performance, and other pertinent factors as evaluated by the employee's Supervisor and/or Department Head, and approved by the Division Director and County Administrator. C. All requests for salary increases shall be processed through the Human Resources office and the Division of Budget and Finance for review and determination of compliance with the County policies and procedures and budgetary control. D. MERIT INCREASES 1. A merit increase is a salary increase within the same pad- grade, awarded for outstanding County Service. 2. Merit increases are not automatic. 3. The amount of merit increase an employee receives, if any shall be determined by the availability of funds, and the system/procedures proposed by the County Administrator and adopted by the Board of County Commissioners each fiscal year. All salary adjustments must be approved by the County Administrator. 26 of 77 4. Art employee shall be eligible for consideration for a merit increase during the budget preparation period after completion of their initial probation period. Unless othen`ise approved by the Board of Count- Commissioners each fiscal rear, an employee N ill receive a Merit Increase on their Anniversary Date (see Section 4.09 C). 5. New employees hired below the minimum rate would be eligible for consideration six months from the date they are adjusted into the minimum rate. 6. Once an employee has reached the maximum salary amount of the pay grade in which his or her position is classified, the merit increase will be awarded as a one time lump sum payment on the employee's anniversary date (unless othernvise approved by the Board of County Commissioners each fiscal rear), unless said position is reclassified to a higher pad- grade (See Section 3 regarding reclassifications). Nevertheless, the employee will still be evaluated in accordance with the County evaluation system. All employees are expected to maintain a satisfactory or above performance level. Failure to do so will result in appropriate disciplinary action. 7. The foregoing reflects the current procedure, however the County reserves the right to change or eliminate the procedure whenever necessary. NOTE: Time spent on a leave of absence without pad- in excess of thirty days shall be deducted from the employee's length of service record when determining the time required for advancement eligibility. E. COST OF LIVING INCREASES The decision whether to or when to grant a cost of living allowance, as N ell as the decision of the amount of such increase (if any) will be made in the sole and exclusive discretion of the Board of County Commissioners. F. RECRUITMENT AND RETENTION INCREASES Retention Salary Increase This provision is intended to provide consideration of critical and/or unusual administration problems. A retention salary increase may be approved, at the County Administrator's sole discretion, in accordance with the following provisions: A. If the employee has received a documented bona fide job offerwith an employer other than the County and the retention increase is a counter offer to retain the employee in their current position (job offers from other Monroe County BOCC offices, Property Appraiser, Clerk of the Circuit Court, Supervisor of Elections, Tax Collector, Sheriff or other office that reports to the Board of County Commissioners will not be deemed a bona fide job offerwith an employer other than the County under this provision). B. Retention salary increase decisions are not grievable through the County's grievance procedure unless it is alleged that such a decision was made based upon unlawful discrimination. C. To be eligible for retention increase consideration, the affected employee must: 1. currently be employed by the County in a career service status position; 2. have been continuously employed in their current position for at least one calendar year prior to the date the bona fide job offer was made; 27 of 77 3. have received at least a "Meets Expectations" rating on their most recent performance evaluation, must currently be performing at an acceptable level, and may not have been issued a written warning within the previous twelve (12) months; and 4. not have received a retention increase with the past twenty-four (24) calendar months from the date the increase request is submitted to Human Resources. D. The County Administrator has sole authority to determine amount offered as a retention increase within the range of 0' o to 25° o of the affected employee's salary. The County Administrator may approve retention increases as single or multiple salary adjustments; howetiTer if multiple salary adjustments are made for one retention increase, the total of those salary adjustments mad- not exceed 25° o of the affected employee's salary. E. The retention salary increase must not place the employee above the maximum for their current pay range. F. Retention increases recommended under this provision are subject to the availability of funds. Procedure: To request a retention increase, the respective Department Head shall submit a retention increase request package to his/her Division Director and obtain his/her approval prior to submitting the request to the Human Resources Office. Increase request packages will include, at a minimum, the following documentation: A cover memo addressed to the County Administrator with the written recommendation approved by the department head and division director. If the employee has another job offer: (a) Validity of the job offer, preferably- a copy- of the N`ritten job offer; (b) The respective division's independent verification of the job offer; (c) Whether the job offer is comparable to the one the employee currently holds with the County. A detail of the training costs that Monroe County incurred on the employee's behalf over the past twenty-four (24) months; 4. summation of the employee's satisfactory job performance (that the employee has performed and continues to perform at least at a "Meets Expectations" level and that he/she has not been issued a written warning within the previous twelve months); 5. that the division's recommended increase, if approved, would not place the employee above the maximum for their current pay range; 6. salary comparison of other employees within the division; 7. recruitment and retention conditions in critical areas as may be demonstrated by (a) high turnover; (b) declined job offers; or (c) copies of resignation letters from previous employees. Importance of the position in relation to the Action Plans of the department and division. The Human Resources office will review the request and make a recommendation to the County Administrator. Certification Incentive Salary Increase This provision is intended to provide an incentive for employees to obtain certifications beyond their current minimum job requirements which will enhance the knowledge in their current position and add value to the department as well as the County. A. Certification incentive salary increase decisions are not grievable through the County's grietiTance procedure unless it is alleged that such a decision was made based upon unlawful discrimination. B. To be eligible for a certification incentive salary increase consideration, the affected employee must: a. currently- be employed by the County in a career service status position; b. have been continuously employed with the County for at least one calendar year prior to the date of registration of the certification; 28 of 77 c. have received at least a "Meets Expectations" rating on their most recent performance evaluation, must currently be performing at an acceptable level, and may not have been issued a written warning within the previous twelve (12) months; and d. not exceed two certifications per calendar year (renewal of a certification will not net any additional increase in pad-). C. $1,300 will be added to the affected employee's salary. D. The certification incentive salary increase must not place the employee above the maximum of their current pay range. In the event the employee reaches the maximum of their current pay range, the salary increase will be awarded as a one time lump sum payment. E. Certification incentive salary increases recommended under this provision are subject to the availability of funds. The Human Resources office will review the request and make a recommendation to the County Administrator. Procedure: To request a certification incentive salary increase, the respective employee shall complete the Certification Incentive form and obtain approvals prior to registering in the certification course or program. 1. The employee shall complete the form and submit it to the Department Head and Division Director for their approval of the recommendation. 2. The Employee Services Director will review the request and shall approve or deny the request. 3. Human Resources will officially notify the employee of the approval (or denial). 4. Upon satisfactory completion of the certification program, the employee shall provide sufficient proof to Human Resources. Human Resources will prepare and process the PAF form to be effective on the date of certification. 4.09 DATE OF HIRE, PAYROLL CHANGES, ANNIVERSARY DATES & EMPLOYMENT STATUS CHANGES A. DATE OF HIRE The date an employee first begins work for the County shall be his/her date of hire, and shall be used in relation to the procedures governing fringe benefits and evaluations when applicable. Any break in employment of 48 hours or more will create the need for a new date of hire if that employee returns to Count- Service. B. CHANGES IN EMPLOYMENT STATUS A promotion can occur when an employee is moved from a position in one class to another position in a different class which has a higher maximum salary. Any employee may be recommended for demotion by the Department Head with the approval of the Division Director and the County Administrator for cause. A demoted employee may not be paid more than the maximum rate established for the new pay grade. An employee moved into another position in the same job classification or to a different position with the same pad- range may not be eligible for a salary increase at the time of transfer. 29 of 77 C. ANNIVERSARY DATES An employee's anniversary date is effective one rear from a promotion, reclassification, or transfer which also resulted in an increase in salary. D. OTHER alien a temporary- employee attains the status of regular employee in the same position, his anniversary date will be his date of hire for evaluation purposes. Leave accrual and benefits will be implemented in accordance with current rules and regulations governing same. 4.10 TEMPORARY -HIGHER CLASSIFICATION An employee may be assigned to work in a higher classification up to one near, unless othernvise determined by the County Administrator. An employee required working in a higher classification 30 consecutive working days or less may be required to do so at no increase in pay. If the employee is required to work beyond this period, he or she should be given a temporary transfer to the higher classification and be paid the appropriate rate for the higher classification retroactively applied to day one he or she seared in such higher classification and every consecutive working day thereafter. At the conclusion of the assignment, pay shall revert to the authorized rate established for his regular position. Any such temporary increase granted shall not affect the employee's eligibility- for normal salary advancement. 4.11 WAGES DUE DECEASED EMPLOYEE In the case of the death of an employee for whom an estate is not raised, any- N ages, travel expenses or similar amounts due the employee shall be paid by the County in accordance with the Florida Statute 222.13. Ail employee who does not have living parents, spouse, or children shall have the right to designate a beneficiary in writing. 4.12 BUDGET LIMITATIONS The County Administrator must administer these Policies and Procedures within the amounts which are contained in the budget as established by the Board of County Commissioners. Accordingly, all employees are hereby- placed on notice that the payment of salaries and the granting of salary- increases is always subject to the availability of funds. 4.13 CO:N PENSATION FOR EXECUTIVE ASSISTANT TO THE MA OR alien an employee becomes the mayor's aide, said employee N ill be awarded a 4' o salary- increase for the length of time he/she holds the position of Executive Assistant to the mayor. Said employee will acknowledge by signature on form entitled "Monroe County Employment Agreement Executive Assistant to the Mayor" that he/she understands and agrees that this additional compensation will be withdrawn if and `hen the commissioner is no longer Mayor. 30 of 77 HOURS OF NVORK SECTION 5 5.01 NVORK DAYS AND NVORK WEEK A. No County Department may operate on less than a 37 1 /2 hour normal work week, nor more than a 40 hour normal work week (exclusive of lunch breaks), unless authorized in advance in writing by the County Administrator. B. The work week shall start at 12:01 a.m. Sunday and end at 12:00 midnight Saturday, unless otherwise approved by the County Administrator. C. Effective May 1, 1991, all newly hired regular full-time employees will be required to work 40 hours per week unless the authorized job posting states othernvise, or unless othernvise determined by the County Administrator. VIen an employee changes his or her position through the Promotional Opportunity system he/she will be required to work forty (40) hours per week, unless othernv ise posted. D. All full-time employees are required to be present on their assigned jobs for the total hours in their work week, unless absence from duty is authorized by the appropriate authority in accordance with these personnel policies. E. Part-time employees are required to be present on their assigned jobs for the total number of hours for which compensations are being received, unless absence from duty is authorized by the appropriate authority in accordance with these personnel policies. F. All absences shall be properly recorded and charged. G. Nothing herein shall constitute a guaranteed minimum number of working hours per week. H. Alternative work schedules (e.g. four 10 hour days) are implemented at the discretion of the Division Director for operations and sections that can utilize manpower and equipment in a more productive manner with the longer day. L Flextime Program — In departments where operations permit a flexible schedule, department heads may authorize a flexible schedule under the following provisions: 1. V-%bile maintaining sufficient staffing during normal office hours (defined as Monday — Friday, 8 am through 5 pm, staff may choose the following: (1) Continue working normal working hours; (2) work 4 ten hour days (no earlier than 7 a.m. — no later than 7 p.m.); (3) work 4 nine hour days and one four hour day; (4) work 5 eight hour days and use only ` hour for lunch and arrive a half-hour later or leave a half-hour earlier; or (5) such other arrangement as are mutually agreeable with employee, supervisor, and Division Director. 2. During weeks with holidays as detailed in Section 6 of Personnel Polices and Procedures (or as othernvise granted by the BOCC), the employee will be granted time for the holiday (if not worked) for what the employee would have normally worked for that day. 3. In situations where there are multiple requests for the same schedule that leaves the department understaffed, the schedules will be rotated on the basis of seniority with the most senior county employee getting their first choice for one month and the next most senior county employee getting their schedule of choice during month two and so forth. 31 of 77 4. Immediate supervisor, Department Head or Division Director has the right to cancel an employee's participation in the Flex Time Program due to hardship issues or abuse of the policy. 5.02 OVERTIME NVORK FOR NON-EXEMPT, NON -EMERGENCY RESPONSE EMPLOYEES Overtime is generally an unbudgeted expense, and should be approved prior to time worked. A. STATEMENT OF POLICY 1. Overtime, whether compensated with cash or time off, must be approved by the Department Head or other appropriate authority as stated in Administrative Instruction #1003 Series. The employment and work program of each Department should be arranged so as to eliminate the necessity of overtime N ork except in emergency- situations. 2. Overtime is defined as work assigned and actually worked by any employee beyond the normal scheduled work week. 3. Employees who work more than their normally scheduled hours will be paid at their straight -time rate of pay for all hours worked up to and including forty (40) hours in a work week. Hours worked in excess of forty (40) hours in a N ork N eek N ill be compensated as provided below. 4. Employees who N ork in excess of forty (40) hours in any N ork N eek N ill be paid overtime at one and one-half times their regular rate of pay for all hours worked over forty (40), or will be granted time off (compensatory time) in lieu of overtime if the employee consents in writing. 5. Compensatory time, if offered by the County, will be governed by the following conditions: a. Must be authorized by the appropriate Department Head or other appropriate authority as defined in A. 1. above and the employee must consent in writing to compensatory time in lieu of time and a half monetary compensation; b. One and one-half hours of compensatory time will be granted for each hour of overtime worked; c. Compensatory time may be "banked"; however, the maximum balance is 240 hours. When an employee has accrued the maximum of 240 hours compensatory time, any additional overtime hours worked Ii.e., over forty (40)1 will automatically be paid at the time and one- half rate; d. An employee's reasonable request to utilize accrued compensatory time will be considered; however, the County reserves the right to exercise control of the use of time off based on work load and scheduling but only if such work load and scheduling constitutes an undue burden on the County. Paying overtime to another employee to accommodate an employee's compensatory time request is not an undue burden. e. Upon termination of employment, an employee will be paid for all unused authorized compensatory time at a rate of compensation not less than: (1) the average regular rate received by the employee during the last three nears, or (ii) the final regular rate received by the employee, whichever is higher. 32 of 77 5.03 OVERTIME NVORK FOR EMERGENCY RESPONSE EMPLOYEES Overtime for Firefighters is outlined in the negotiated LAFF Union Contract. 5.04 OVERTIME NVORK FOR EXEMPT EMPLOYEES It is the general policy- of Monroe Count- not to compensate for overtime those employees classified as 'exempt', from the Fair Labor Standards Act. However the County Administrator in his sole discretion may approve compensation for overtime, either in compensatory time or pav, for an exempt employee who has been required to work unusually large amounts of overtime, such as during a disaster, etc. 5.05 MEAL AND REST PERIODS Employees classified as regular full time «ill receive a total of one hour for meal/rest period per work shift, the time and sequence of which «ill be determined by the Supervisor and approved by the Department Head. If it is necessary for the non-exempt employee to work without a meal/rest period he/she will be othernvise compensated for that time. All other employees will receive meal or rest periods in an amount and time deemed appropriate by their Supervisor. Meal and rest periods shall be scheduled by the Department Head consistent with the effective operation of the department and may be rescheduled whenever necessary. 33 of 77 HOLIDAYS SECTION 6 6.01 OFFICIAL HOLIDAYS The following are holidays which shall be observed by all County offices in which functions can be discontinued without adversely affecting required services to the public: NeNv Year's Day- Labor Day- Presidents Day Columbus Day Martin Luther King's Birthday- Veterans Dad- Good Friday- Thanksgiving Dad- Memorial Dad- Thanksgiving Friday- Independence Day Christmas Day In addition to the abotiTe-designated holidays, the Board of Commissioners, in its sole discretion mad grant other special holidays during the course of a near to some, or all, County employees. 6.02 ELIGIBILITY All salaried employees on the active payroll on the date of the holiday shall be eligible for holiday- pay at their regular rate of pad-. Hourly- employees shall not be eligible for holiday- pad-. Employees must be working or on approved leave with pay the entire day before and the day after a holiday to be compensated for said holiday. 6.03 NVORK DURING HOLIDAYS Each employee shall observe all holidays designated in this Section, provided that the work load of the department is, in the discretion of the County Administrator, such that the employee's work load cannot be discontinued without causing a hardship to the County. In the event that the work load in any department does not permit the observance of any designated holiday, all employees required to work on said designated holiday, or if holiday falls on employees designated day off, may be granted another dads leave in lieu of the holiday or paid for the work performed on the holiday, as determined by the Department Head and/or Division Director. 6.04 HOLIDAYS FALLING ON VEEI�ENDS OR N\TIEN COUNTY FACILITIES ARE NOR..\LALLY CLOSED Unless othernvise specified by the Board of County Commissioners - when a holiday falls on a Saturday, the preceding Friday- shall be observed as a holiday- - when a holiday- falls on a Sunda-, the following :NIondav shall be observed as a holiday-. For County facilities normally- open on Saturdays and Sundays, when a holiday falls on a Saturday or Sunda-, those facilities will observe the holiday on the actual holiday in lieu of the normally scheduled County Holiday. For County facilities normally- closed on Sundays and Mondays, when a holiday falls on a Sunda- or Monday, those facilities N ill observe the holiday on the following Tuesday. 34 of 77 6.05 HOLIDAY DURING PAID LEAVE Employees on annual or sick leave during periods when designated holidays occur, shall not have the day of the holiday charged against their accrued leave. 6.06 OBSERVANCE OF RELIGIOUS HOLIDAYS Employees who choose to observe other "holidays" for religious or other reasons must do so by utilizing annual leave pursuant to Section 7. 35 of 77 LEAVE WITH PA SECTION 7 7.01 ANNUAL LEAVE, A. ELIGIBILITY All salaried employees with regular status working 20 hours or more per week shall earn and accrue annual leave with pay. Hourly employees «ill not accrue annual leave. B. ACCRUAL Annual leave for regular, employees shall be earned in accordance with the following table: Years of Hours of Leave Earned Hours of Leave Earned Continuous During Each Calendar During Each Calendar Service Month Month 40 HPNV 37 ` HPN 1 through 3 rears 4 hours per bi-N eekl� 3.75 hours per bi-N` eekly pad- period pad- period (13 working days per rear) (13 working days per rear) 4 through 10 rears 5 hours per bi-N eekly 4.75 hours per bi-N eekly pad- period pad- period (16 1/4 working days per (16.5 working days per rear) rear) 11 through 15 rears 6 hours per bi-N eekly 5.75 hours per bi-N eekly pad- period pad- period (19 1/2 working days per (19.9 working days per rear) rear) 16 through termination of employment 7 hours per bi-weekly 6.75 hours per bi weekly pad- period pad- period (22 3/4 working days per (23.4 working days per rear) rear) Monroe Count- currently- has a bi-N eekly pad- period system commencing at 12:00 a.m. Sunda-, ending t` o Saturdays later at 11:59 p.m. There are 26 pa- periods per year. Annual leave for employees working less than 40 hours per week, but more than 20 hours per week will be prorated according to the hours worked. When there has been a break in employment of 48 hours or more, the employee, upon reinstatement or re-employment, will begin earning annual leave as a new employee. 36 0177 Employees who are on leave without pay status for more than 8 hours during a pay period «ill not accrue annual leave for that pay period. C. 1. Annual leave may be used on a payday -to- payday basis as it is earned according to scheduling requirements and may be accumulated up to 40 working days with a maximum of 320 hours. Any time earned in excess of this amount as of April I" of each year will be rolled over to the employee's Sick Leave balance. Individual employees are responsible for monitoring their own leave balance. It is an employee's personal responsibility to request and schedule leave in order to avoid the roll over of hours. 2. All annual leave must be approved in advance by the applicable Department Head, Division Director and/or the County Administrator depending on the position held by the requesting employee. The employee shall fill out his Leave Request Form and submit it to the Department Head, who has the right to deny an employee's request for annual leave, if granting such leave at that time would be detrimental to County operations. Upon such denial, the employee may request the leave at another time. The Department Head is responsible for verifying that the employee does have sufficient accrued leave to cover the period of absence, and should return the leave request to the employee indicating approval or denial, within seven (7) days of receipt of the request, unless a valid reason is given to the employee for the delay. D. ANNUAL LEAVE. PAY UPON SEPARATION If the payment of annual leave is approved by the County, computing said leave pay will be based on the employee's regular rate of pad- and terms of separation. E. RESTRICTIONS Annual leave may be used for any purpose; however, it is a privilege incident to County service and is not a right, and may only be used by the employee if taken prior to termination for cause or in accordance with these policies, N ith the following restrictions: 1. Annual leave may not be taken until accrued in accordance with these rules. 2. Employees will not accrue annual leave during a leave of absence without pay, a suspension or when the employee is othen`ise in a non -paring status. 3. Section 11.01-Resignations. 4. Employees who leave the County service without proper notice or who are terminated for just cause may be denied payment of accrued annual leave. 7.02 SICK LEAVE. A. ELIGIBILITY All salaried employees with regular status working 20 hours or more per week shall have the privilege of accruing sick leave in accordance with these policies. Hourly employees will not accrue sick leave. Employees shall not be eligible to use sick leave until they have been in the County service for 90 days, unless recommended by the Department Head and approved by the Division Director. Verification of illness by a physician may be required. 37 of 77 B. ACCRUAL OF SICK LEAVE All regular, full-time employees «ill accrue 4 hours sick leave per pay period. There «ill be no limit of the amount of sick leave that can be accrued. Sick leave for employees working less than 40 hours per N eek, but at least ti entv (20) hours per N eek «ill be prorated according to the hours worked. V-%hen there has been a break in service of 48 hours or more, the employee upon reinstatement or re- employment N ill begin accruing sick leave as a new employee. Employees who are on leave without pay for more than 8 hours during a pay period «ill not accrue sick leave for that pay period. C. USE OF SICK LEAVE 1. Sick leave shall be used only with the approval of the applicable Department Head, Dlvlsion Director or County Administrator and shall not be authorized prior to the time it is earned and credited to the employee except in cases of prearranged medical appointments, surgery or other health -related matters. 2. Sick leave shall be authorized only in the event o£ a. The employee's personal illness, injury or exposure to a contagious disease which would endanger others. b. Illness or injury of a husband, wife, domestic partner, father, mother, legal guardian, son or daughter (including adopted or foster child). c. The employee's personal appointments with a practitioner when it is not possible to arrange such appointments for off -duty hours, but not to exceed the extent of time required to complete such appointments. d. Prearranged surgery or other health -related matters. D. Monroe County has established a Sick Leave Pool for eligible full-time employees designed to aid the employee suffering from an extended illness or injury (See Administrative Instruction 4702 for rules and enrollment procedures). 7.03 MEDICAL, -JUSTIFICATION A. Sick leave is a privilege, and not a benefit. In fact, use of sick time actually causes a hardship on the County. The County must, therefore, ensure that employees utilizing sick leave are complying with Section 7.02 of these policies and procedures. Employees must meet the following conditions in order to be granted sick leave with pay: (1) Notify his/her immediate Supervisor as soon as the employee learns that he/she will be unable to report to work in accordance with individual department policy. The employee shall call in to his/her immediate Supervisor at least one (1) time on each consecutive shift thereafter, that the employee will miss N ork because of sick leave. 38 0177 (2) File a written report (after returning to work) explaining the nature of the illness when required, by her Supervisor or Department Head. (3) Permit medical examination, nursing visit or any County inquiry (telephone call, visit to the employee's house, etc.) deemed appropriate by the County to document the illness of the employee or family member. The Department Head is responsible for following up on sick leave use and for ensuring that there is no sick leave abuse. The Department Head may require any employee to bring in a note from his or her personal physician for absences of three (3) consecutive working days or more. However, if a Department Head reasonably suspects that an employee is abusing sick leave, said Department Head may require that any use of sick leave by the employee for herself or family member be justified by a note from a physician. Further, in the event that a Department Head is unsatisfied with the initial doctor's note, he may require the employee or family- member to be examined by a County - designated physician at the County's expense. B. If it is determined that the employee is unfit to continue working, the Department Head may require the employee to use any part of his accrued sick leave, compensatory time or annual leave and may thereafter require the employee to take such leave without pay as is medically determined sufficient to restore him to normal health, however, this will in no way prevent the County from separating him from employment if the absence would be of such duration as to pose a hardship on the operations of the Department. C. The Department Head may require, at anv time, an employee to present medical evidence that he is physically or mentally fit to work and/or the Department Head may require an employee to be examined by a Count -designated physician or psychiatrist, at the County's expense. 7.04 NOTIFICATION OF ABSENCE (SEE 7.03 A) If absent for three consecutive work days without reporting to the Supervisor a reason sufficient to justify the absence, the employee may be removed from the payroll as having voluntarily resigned without notice. The Supervisor is to notify the Department Head. Any unauthorized absence may be cause for disciplinary action, up to and including termination. 7.05 FUNERAL LEAVE A. All employees covered under this policy shall be granted up to two working days off with pay in order to attend a funeral of a member of the employee's immediate family. The immediate family shall be construed to mean one of the following: Husband, Fife, father, mother, son, daughter, sister, brother, uncle, aunt, first cousin, nephew, niece, domestic partner, domestic partner's father and mother, legal guardian, grandparent or in-laws father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, half sister. Additional time off (over and above the two working days herein provided) may be approved by the Department Head, and charged to sick or annual leave. Additionally, the County may require proof of death of a family member before making payment for leave. 7.06 HOLIDAYS DURING SICK LEAVE Holidays occurring while an employee is on sick leave shall not be charged against the employee's sick leave balance. 39 of 77 7.07 PAYMENT OF UNUSED SICK LEAVE A. An employee who terminates with less than fire (5) rears continuous service shall not be paid for any unused sick leave credits. B. Employees with varying years of continuous service shall, upon separation, from the County in good standing, death or retirement, receive incentive sick leave pay as follows: 5 to 10 rears of service - 1 /4 of all accrued sick leave, N ith a maximum of 30 days. 10 to 15 rears of service - 1 /2 of all accrued sick leave, N ith a maximum of 90 days. 15 years or more - 1 /2 of all accrued sick leave, with a maximum of 120 days. C. The payments made as terminal pay for unused sick leave, whether paid as salary or otherwise, shall not be used in the calculation of average final compensation for retirement. D. Employees who leave the County service without proper notice or who are terminated for just cause may be denied payment of accrued sick leave. 7.08 TRANSFER OF LEAVE An employee who resigns from any entity or organization to accept a position N ith the county N ill not be credited with hours of unused sick or annual leave which was accrued while employed by that entity or organization. 40 0177 LEAVE OF ABSENCE SECTION 8 8.01 ADMINISTRATIVE LEAVE. Administrative leave is leave with pay that is not charged to the employee's sick or annual leave. A. JURY DUTY AND COURT LEAVE 1. A full-time employee who is summoned to jury duty bv a city, the County (Monroe), the State of Florida, or the Federal Government or subpoenaed to appear in court as a witness in a criminal or civil action arising from his or her county employment shall be granted time off with pay for the time actually spent on jury duty or in the court appearance. Fees paid by the court will be retained by the employee unless othenvise determined by the County Administrator. As conditions precedent to receiving time off N ith pad- for jury duty or court appearance of the aforesaid nature, the employee must: a. Notify his/her Department Head of the summons or subpoena immediately upon receipt, produce the summons or subpoena to his/her Department Head upon request, and provide the Department Head with an estimate of the duration of the absence; b. Report to the Department Head immediately upon the conclusion or continuance of such jury duty or court appearance; C. Report status of jury duty to supervisor or designee on a daily- basis. 2. Any employee on jury duty as specified above, and who is released or excused from jury duty during normal working hours, will immediately contact his or her supervisor in order to determine whether the employee will be required to report back to work. Employees who work a 24 hour shift, will contact their Department Head (or designee) when released from jury duty. If the Department Head (or designee) determines that the employee could not effectively complete his or her work shift, the employee may be granted time off with pay for the remainder of the shift. 3. The County, in its discretion, may reschedule the working hours and days of work of an employee employed on other than a full-time basis who is summoned to jury duty or subpoenaed to appear in court as a witness bv a city, the County (Monroe), the State of Florida, or the Federal Government in a criminal or civil action arising from his or her county employment. If, in the County's judgment, it is not feasible or practical to schedule the employee's hours of work around such, the County shall grant the employee time off with pay for the time actually spent on jury duty or in the court appearance. As conditions precedent to receiving time off with pay for jury duty or court appearance of the aforesaid nature, the employee must abide by the provisions contained above in Section 8.01 A-1, (a) and (b). 4. If any employee is subpoenaed as a witness other than in the specific circumstances described above, the County will grant the employee leave without pay to the extent that the Department Head so approves. 5. Not`ithstanding any of the provisions of Section 8.01-A above, no employee shall receive pad- from the County where the employee is a plaintiff, claimant, or witness against the County in a matter contrary to the County's interests. 41 of 77 6. Any employee subpoenaed or othenvise requested to be a participant in any legal matter related to Count- business must inform the Count- Attorneys office as soon as possible after receiving said notification. B. ELECTIONS An employee who is a properly- registered voter and who lives at such distance from his assigned N ork locations as to preclude his voting outside of working hours may be authorized by the Department Head to have a maximum of two hours of leave with pay for this purpose. An employee shall not be granted administrative leave to work at the polls during elections. C. MEETINGS In cases where it is deemed by the Division Director to be beneficial to the County, an employee may be granted leave with pay to attend such professional meetings or conferences as may contribute to the effectiveness of his employment (See Section 15 - Travel - for reimbursement procedures). D. EXAMINATIONS An employee may be granted leave N ith pad- while taking examinations before a Federal, State or County agency-, provided such examinations are pertinent to his County employment, if approved by the Department Head and the Division Director. E. MILITARY LEAVE — In accordance N ith F.S. 115 1. Military Training Employees who are reserve enlisted personnel in the United States military or naval service or members of the National Guard will be granted leave with full pay during days Which they are engaged in military or naval training. Leave shall not exceed 17 working days in any one annual period (beginning October 1 and ending September 30 of the following year). Additional time shall be without pay and shall be granted without loss of time or efficiency rating. The employee will not be required to use annual leave or similar leave (comp time) in lieu of LN'OP. Does not include Armory Drills or Multiple Training Assemblies. 2. Military Service - Employees who are enlisted personnel in the National Guard or a reserve of the U.S. Armed Forces will be granted leave to perform active military service for the first 30 days with full pay. Paid leave shall also include the period during which a person in military service is absent from duty on account of sickness, wounds, leave, or other lawful cause. Period of active military service shall begin with the date of entering upon active military service and shall terminate with death or a date 30 days immediately next succeeding the date of release or discharge from active military service, or upon return from active military service, whichever shall occur first. Military earnings N ill be retained by the employee. 3. Examinations for Military Service - Any employee who is ordered by the Selective Service Board to appear for a physical examination for induction into the military service shall be granted leave N ith pad- for this purpose. 42 of 77 4. Re-employment — National Guard Members — A member of the National Guard who returns to work after searing on state active duty «ill maintain seniority and other benefits as outlined in F.S. 250.482. F. USERRA — Uniformed Service Employment and Reemployment Rights Acts of 1994. Does riot apply to ".hate" ncilitur y duty or, uo er rzor &ill-llo of \'utiorzul Guard, l- elvbers. Please r f r to "E " ubo e for leer e policy. In addition to "E" above: USERRA corers employees who are: Active or reserve: Army, Navy, Marine Corps, Air Force, Coast Guard, Army National Guard, or Air National Guard, Commissioned Corps of the Public Health Service, and Ativ other category designated by the President in time of war or emergency. In addition, protects former and retired members and applicants for future service with a uniformed service. USERRA does not include temporary employees unless employment is for a brief period with no reasonable expectation of continuance for a significant period of time. USERRA corers voluntary and involuntary. For purposes of military leave covered by USERRA — "Service" is defined as: Active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, absence for examination to determine fitness for any of the above forms of duty and funeral honors duty by National Guard or Reserve. Employees «ill receive up to 5 years military leave of absence (which includes reemployment rights). Types of service that do not count against an employee's five-year maximum includes: Inactive duty training (drills), annual training, involuntary recall to or retention on active duty, voluntary or involuntary active dart in support of war, national emergency, certain operational missions, or additional training requirements determined and certified in writing by the Service Secretary, and considered to be necessary for professional development or for completion of skill training or retraining. Certain specific exceptions will continue to protect beyond the five-year time period: Service required to complete an initial period of obligated service: Six -year active duty stint as an enlistee with the U.S. Navy's nuclear power program; Service from which a person, through no fault of the person, is unable to obtain a release within the five -near limit; Required training for reservists and National Guardsmen; Service under an involuntary order to, or to be retained on, active duty during domestic emergency or national security related situations; Service under an order to, or to remain on, active duty (other than for training) because of a war or national emergency declared by the President or Congress; Active duty (other than for training) by volunteers supporting "operational missions" for which selected reservists have been ordered to active duty without their consent; Service by volunteers who are ordered to active duty in support of a critical mission or requirement in times other than war or national emergency and when no involuntary call-up is in effect; and Federal service by members of the National Guard called into action by the President to suppress an insurrection, repel an invasion, or to execute the laws of the United States. 1. BENEFITS WHILE ON LEAVE —Beginning on the 31'r day and beyond, there will be no health insurance coverage. Employees will be offered coverage under COBRA. 43 of 77 2. RE-EMPLOYMENT (Military time served must be satisfactory-. Must not be `less than honorable conditions".) A returning employee's notification of intent to return to work must be made promptly following completion of military service. Service of 1 — 30 days: the beginning of the next regularly scheduled work period on the first full day following completion of service and expiration of an 8-hour rest period following safe transportation home. Service 31-180 days: application for reinstatement must be submitted no later than 14 days after completion of military duty. Service of 181 or more days: application for reinstatement must be submitted no later than 90 days after completion of military- duty. The deadline for reinstatement may be extended for employees who are convalescing due to a disability incurred during service. The employee must report back to work as soon as possible. Failure to report (unless through no fault of the employee) will be handled in accordance with the County's policies. Returning employee's pension plan accruals and vesting will continue as though no break in service had occurred except in limited situations (regarding health benefits as defined under the Act). Upon re-employment, the employee has 3 times the length of service (not to exceed 3 years) to make payments to any contributory plan and the County will fund any resulting obligation of the plan within the same time). When re-employed, the health insurance coverage will start from day 1 and there will be no waiting period. G. ADMINISTRATIVE LEAVE FOR RE-E-NAMINATION OR TREATMENT BY VETERANS ADMINISTRATION WITH RESPECT TO SERVICE -CONNECTED DISABILITY — In accordance with F.S. 110-119. Any employee of the County who has been rated by the Veterans Administration to have incurred a service -connected disability and has been scheduled by the Veterans Administration to be re-examined or treated for the disability shall be granted administrative leave for such examination or treatment without loss of pay or benefits. In no event shall the paid leave under this section exceed six (6) calendar days a year. A leave request should be submitted to the Department Head for said leave as far in advance as possible. H. BLOOD DRIVES Employees will be granted leave with pay to donate blood during the County's organized Blood Drives. L EMERGENCY RESPONSE VOLUNTEERS 44 of 77 1. Any employee who is a documented member of an Emergency Response Team «ill not be charged annual or sick leave, or be required to use accrued compensatory time when called to respond to a legitimate emergency. The County reserves the right to require documentation that an emergency did in fact exist. 2. Any employee who is a member of an Emergency Response Team should inform the County at the time of employment interview or if already employed by the County, upon becoming a member of such a Team. Failure to do so could result in disciplinary action. J. MENTORING PROGRAM Pursuant to Resolution 100-2000, county employees may mentor a child in the Monroe County School District for up to one hour per week (not to exceed five hours per calendar month). Leave «ill be granted after taping into consideration the impact on such leave on the employee's work unit. If an employee is granted administrative leave under this section and does not use the administrative leave as authorized in this section, the employee shall not accrue or be paid for such unused leave. 8.02 DISABILITY LEAVE WORKERS COMPENSATION A. ELIGIBILITY An employee, who sustains a County Service -connected disability which prevents the employee from carrying out his regular duties or any other duties as assigned, shall be entitled to disability leave within the guidelines of this Section. B. DEFINITIONS 1. Date of Disability - The date on which the disability began, or the last day of duty following injury, whichever is later. 2. Service -Connected Disability - A physical condition, resulting from accident or injury in the line of duty, which prevents an employee from performing his regular duties or any other duties as assigned. C. DISABILITY DETERMINATION Determinations of the existence and service connection of a disability shall be made in accordance with the Florida State Workers Compensation Act which provides that the employer is responsible for furnishing employees, who have incurred service -connected disabilities, with such remedial treatment, care and attendance under the direction and supervision of a qualified physician, surgeon or other recognized practitioner. The County reserves the right under the provisions of this Section to specify the physician or surgeon or recognized practitioner to handle any and all service -connected disability cases. Disability determination shall be made based on: 1. All facts in the service history of the case. 2. The findings of the medical examiner assigned by the Workers Compensation carrier. 3. Such evidence as the employee may submit, at his own expense, of the service connection of his disability. 45 of 77 4. Other relevant evidence submitted to the medical examiner. 5. There shall be no presumption that any disability is service -connected, unless such a presumption exists as a matter of lay`. 6 Any condition which is self-inflicted or caused by another person for reasons personal to the employee and not because of his employment shall not be considered as disability under this provision. D. NVORKERS COMPENSATION CLAIMS 1. It is the responsibility of the employee to report any and all job related injuries to his or her immediate Supervisor as soon after the injury occurs as possible. All Notice of Injury must be reported to Worker's Compensation office. It is the responsibility of the Supervisor to file a Notice of Injury Form and Supervisor's Report N ith the Employee Benefits Section, as soon as possible. A fine of $500 N ill be assessed against the County by the State of Florida for a claim that is not filed on a timely- basis. The Notice of Injury Form must be complete. 2. An employee who sustains a job -related injury resulting in disability that is compensable under the Workers Compensation Law, Chapter 440, Florida Statutes, shall have a seven (7) calendar day waiting period before Workers Compensation Benefit payments begin. During this waiting period, an employee may elect to use sick leave, annual leave, or documented compensatory time to receive normal salary. 3. Time spent obtaining medical treatment after seven (7) day waiting period related to the workers compensation injury will be paid for by the employing department and will not be charged against the employee's sick, annual or other accrued hours. The employee shall obtain the "Authorization for Treatment Evaluation" form from the Worker's Compensation Office and have the physician complete and fornvard to the workers' compensation office so that the employee not be charged sick/annual hours. . If disability continues into the eight (8th) calendar day, normal Workers Compensation payments would begin at a rate of 66 2/3' o of the employees gross salary, computed on their average weekly N age for 13 weeks prior to the date of injury, in accordance N ith the Workers Compensation Law. 5. If disability continues into the twenty-first (21st) calendar day, the employee will receive Workers Compensation benefits retroactive to the date of injury, at the same rate discussed in #2, in accordance with the Workers Compensation Law. Any sick leave, annual leave, or compensatory time used by the employee for this seven (7) day period will be replaced on the books, based percentage wise on Workers Compensation Benefits paid. 6. After seven (7) calendar days, the disabled employee will continue to receive Workers Compensation benefit payments every two weeks until their physician releases them to return to N ork. 7. If requested by the employee, a review of the case will be made by a committee composed of a representative of the Human Resources and/or Employee Benefits offices and the 46 0177 employee's Department Head, and a written recommendation may be made to the County Administrator that the employee be allowed to use annual leave, sick leave and/or approved compensatory time in an amount necessary to receive a salary amount that will supplement their Workers Compensation payments up to the total net salary received prior to the disability. In no case shall the employee's salary and Workers Compensation benefits combined exceed the amount of their regular salary payments. If the Workers Compensation absence is designated as F:NILA leave, the employee N ill not be allowed to use annual leave, sick leave and/or approved compensatory time to supplement leave, in accordance with Department of Labor rules. 8. The disabled employee will continue to accrue both sick leave and annual leave during the period of disability. 9. An employee placed on light -duty by his or her physician, may enroll in the Light -Duty Program as written in Administrative Instruction 8002. 10. When an employee on Workers Compensation can no longer perform his/her normal job duties, he/she may be separated from employment, if approved by the County Administrator, in accordance with the laws of the State of Florida governing Workers Compensation and these policies and procedures. 8.03 PREGNANCY,MATERNITY AND CHILD CARE LEAVE A. PREGNANCY 1. An employee who knows in advance that he/she intends to request Maternity or Child Care leave shall notify, in writing, their Department Head or Supervisor at least thirty (30) days prior to the requested time of leave. Eligible employees shall submit a "Family and Medical Leave Act Leave Request" form (see Section 8.05) 2. An employee whose duties may be considered hazardous enough to cause the employee to become medically disabled anytime during the pregnancy will be required to furnish medical evidence of her fitness to continue in the performance of her duties beyond that time. A Department Head may request this determination at anv time he/she deems necessary for the health or welfare of the employee. 3. A pregnant employee may continue her employment as long as she is able to properly perform the required duties of the job, and these duties are stated in writing by her physician to be non -hazardous to the employee and the unborn infant. B. :NLATERiNITY LEAVE 1. Disabilities arising out of pregnancy, childbirth and recovery there from, shall be treated the same as other temporary, non -job -connected disabilities in terms of eligibility for use of sick leave, annual leave, or leave of absence. 2. A regular employee who has completed the standard probationary period may request a maternity leave of absence without pay for childbirth, recovery and child -rearing following birth of up to six (6) months after all accrued sick and annual leave has been used. Such approval is subject to scheduling and work load requirements. The County reserves the right to require employee(s) to return to work 47 of 77 when it is no longer medically necessary to be away from their job, if work load and scheduling requirements require the employee's return in accordance with the Family and Medical Leave Act. 3. Any such leave must be requested in advance and approved by the applicable Department Head and the Division Director, who may approve the length of said leave based on workload, scheduling and the employee's physical ability to return to work. 4. An employee approved for maternity leave shall be eligible to return to work at any time during the leave of absence upon presentation of medical certification indicating that she is able to satisfactorily perform her original duties. 5. An employee returning from an approved maternity leave of absence shall resume her duties in the position held prior to childbirth or a similar position with like pay. 6. An employee who fails to return from an approved maternity leave of absence shall be considered to have abandoned her position and shall be terminated from the County Service, unless proper resignation procedures are followed. C. CHILD CARE LEAVE Child Care Leave is an absence available to eligible employees under the Family Medical Leave Act for up to 12 weeks (see Section 8.05). 8.04 LEAVE OF ABSENCE WITHOUT PA A. EDUCATIONAL LEAVE 1. An employee N ith at least t` elve (12) months of satisfactory service may be granted leave of absence without pay for the purpose of furthering his/her education, if it is determined by the County Administrator, in his discretion, that such education will be of clearly foreseeable benefit to the County. 2. Leaves of this type shall not normally exceed twelve (12) months; however, the D' 'sion Director may approve an extension of such leave if an individual case is justified and approved by the County Administrator. B. PERSONAL LEAVE, 1. If recommended by the Department Head and the Division Director, an employee with at least t`elve (12) months of satisfactory service may be granted leave without pad- for reasons other than those stated in the previous paragraphs for a period not exceeding six (6) months; provided the County Administrator deems such leave to be justified, and not detrimental to the operations of the Department. C. SCHEDULING AND APPROVAL OF LEAVE OF ABSENCE WITHOUT PA 1. All leave of absence without pay must be approved in advance. The employee shall fill out the Leave Request Form and submit it to the Department Head for approval. The Department Head Will submit the approved form to the Division Director for approval. . A completed copy of the Leave Request Form will be forwarded to the Payroll Department along with the Employee's Time Sheet whenever possible and a copy placed in the employee's official personnel file. 48 of 77 2. Leave without pay is not intended as a convenience for the employee but rather to help the employee in cases `here an emergency- exists after all available time has been used. In cases of short term absences (except as noted in 8.04 A & B) where the employee has no leave available, such leaves may be processed without the prior approval of the County Administrator. D. LEAVE OF ABSENCE - GENERAL PROVISIONS 1. RETURN FROM LEAVE OF ABSENCE An employee returning from approved leave shall be entitled to employment in the same Department and the same or equivalent classification wherein employed when said leave began, provided the employee is physically capable of performing the required duties, and that there is such a vacant and budgeted position available. 2. EFFECTIVE DATE Leave of absence shall be effective the first date of approved absence and shall continue through the last date of approved absence. 3. LIMITATIONS ON LEAVE. WITHOUT PA a. Fringe Benefits - An employee shall not earn benefits while on leave without pay status. This would include, but not necessarily be limited to, sick, vacation and holiday leave. b. Wage Increases - The time during which an employee is on leave without pay may not count toward eligibility- for N age increases. Nor may an employee receive and Nvage increases while on leave without pay; unless special approval is obtained from the County Administrator. c. Employees on an approved leave of absence without pay that is covered under the Family and Medical Leave Act will not lose the benefits that the employee earned or was entitled to before using FMLA leave. E. INSURANCE COVERAGE N\TIILE ON LEAVE, OF ABSENCE 1. The County will continue to maintain group insurance benefits for employees while on approved paid leave status. 2. Employee Coverage - In most cases the Countywill not maintain Group/Health insurance benefits for employees on leave without pay- status, except in the case of debilitating/catastrophic illness, of the employee or member of the immediate family for which the care of that family member is the responsibility of the employee. In accordance with 8.04 (C), the DitiTision Director shall approve the absence and communicate with the Employee Benefits Committee. The Employee Benefits Committee is comprised of the County Administrator, the Employee Services Director and the Sr. Administrator, Benefits. The Committee will review each case to determine whether employee coverage should be maintained as verified by a physician, up to six (6) months. Employees covered under the Family and Medical Leave Act will be granted up to 12 weeks of insurance benefits as stated in Section 8.05. 49 of 77 If leave extends beyond the maximum allowed period of six months and is on a non -paid status, said employee must make monthly premium payments for themselves in order to continue health insurance coverage. Failure to make payment(s) on a timely basis will result in termination of Coverage. 3. Dependent Coverage -Monroe County employees elect dependent coverage under a group plan at their own expense. Monroe County uses the bi-N eekly payroll deduction system for payment of dependent coverage premiums for employees. However, if for anv reason an employee is not due to receive a paycheck in an amount sufficient to deduct said premium, that employee is responsible for making the premium payments to the Employee Benefits Section in accordance with their payment schedule. As long as an employee is in good standing, as in the case of approved leave without pad- status, he or she may make premium payments and coverage will remain in effect. Failure to make payments on a timely- basis may result in termination of coverage. 4. Extension of Group Insurance benefits will be awarded in accordance with the Consolidated Omnibus Budget Reconciliation Act (COBRA), effective October 1, 1986. Information regarding this Act is available in the Employee Benefits Section. 8.05 FAMILY AND MEDICAL LEAVE OF ABSENCE (F ILA,L(F �MILY AND MEDICAL LEAVE ACT OF 1993. A family- leave of absence, and/or medical leave of absence, is an approved absence available to eligible employees. An eligible employee is entitled to 12 weeks of leave per calendar year Uanuary — December) (#1, 2, 3, 5) or a combined total of 26 weeks of leave (for #4)_during the calendar year to care for: 1)- The employee's newborn child or child placed with the employee for adoption or foster care (leave must conclude within 12 months of placement and may be taken by either parent); 2)- The employee's spouse, child or parent with a serious health condition, or 3)- An employee's own serious health condition. 4)-For the spouse, child, parent, or next of kin of a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is othenvise in outpatient status, or is othernvise on the temporary disability retired list, for serious injury or illness. 5)-For the spouse, child, or parent, is on active duty, or because of notification of an impending call or order to active duty in support of a contingency operation. If the employee is requesting FMLA qualifying leave, all accrued sick and annual leave must be taken first. Paid leave so taken will be counted against the employee's total F:NILA leave entitlement. The employee will be notified that paid leave will be counted as F:NILA leave within five (5) business days of making that determination. The notice will be confirmed in writing to the employee on or before the following payday. A. ELIGIBILITY To be eligible, an individual must have been employed at Monroe County: - For at least 12 months, and - For at least 1,250 hours of service during the 12 month period immediately preceding the leave. Subsequent eligibility will be determined by looking back to the beginning of that calendar year from the first day of a new FMLA leave period which is requested by the employee. FMLA leave may not exceed t` elve weeks during the 50 of 77 calendar near or a combined total of 26 weeks. An eligible employee shall be entitled to a combined total of 26 work weeks of leave for family, medical and/or service member leave. Husbands and wives working for the same employer are only granted a combined 12 weeks of leave; however, both spouses may each take 12 weeks to care for a child with a serious health condition. The determination of whether an employee meets the minimum service and hour requirements of the FMLA must be made by Monroe County as of the date the leave commences, and Monroe County will advise the employee whether lie or she is eligible N ith fire (5) business days after making a determination of eligibility. B. PROCEDURES A "Request for Family and Medical Leave of Absence" form should be completed by the employee as part of the notice and reporting requirements. The employee shall notify the Department Supervisor of the need for leave either verbally or by completing the F:NILA form. (In any event, the employee shall fill out a Leave Request Form in accordance with the County's Policies and Procedures in order to request leave.) After completing the form in detail and signing it, the employee or Supervisor must submit it to Human Resources for approval. Notification shall be given at least thirty (30) days in advance of the effective date of the requested leave if the need for leave is foreseeable. The "Certification of Health Care Provider" form must be completed and signed by the health care provider. Failure to have the form completed may result in a delay for the approval of leave. C. BASIC REGULATIONS AND CONDITIONS OF LEAVE 1. Monroe Countywill require the employee to fill out a request for Family and Medical Leave of Absence form that included the "Certification of Health Care Provider" form supporting the need for leave due to a serious health condition affecting the employee or employee's spouse, child, or parent or next of kin in the case of service member family- leave. 2. Monroe County may, at its own expense, require a second medical opinion and periodic re -certification. If the first and second medial opinions vary, Monroe County may, at its own expense, require the binding opinion of a third healthcare provider, approved jointly by Monroe County and the employee. 3. If medically necessary, such leave may be taken intermittently or on a reduced work schedule. If FMLA leave is for both birth and care or placement for adoption or foster care, use of intermittent leave is subject to approval. The decision to grant leave or to temporarily transfer the employee on this basis rests solely with the County Administrator based on a medical certification provided with the Family Medical Leave of Absence Form. 4. alien husband and N ife are both employed by Monroe County, together they- are entitled to a total aggregate of ti elve weeks of Family- Leave or a combined total of 26 weeks for member leave. 5. Employees requesting FMLA qualifying leave will be required to substitute paid vacation and sick leave for all or party of any (other` ise) unpaid F:NILA leave. 6. While on any unpaid part of an F:NILA qualifying leave, no time will be accrued by the employee. Upon return to work, leave will accrue based upon established policy. D. DESIGNATION OF LEAVE Monroe County shall designate an employee's absence toward the employee's 12-N eek F:NILA entitlement as soon as it is known that the employee's absence qualifies as F:NILA leave. Monroe County N ill notify- the employee that 51 of 77 his/her leave N ill be designated as F:NILA leave within fire (5) business days. The notification to the employee can be oral, but «ill be confirmed in writing no later than the next regular payday. Injuries entitling employees to workers' compensation frequently qualifies as serious health conditions for purposes of FNILA leave eligibility. Monroe Counn shall count an employee's N orkers' compensation absence toward the employee's 12-week F:NILA entitlement as stated above. If it is found that the absence does not qualify under the FAIL-N, Monroe County N ill N ithdraw the designation with written notice to the employee. E. EMPLOYEE NOTICE AND REPORTING REOUIRELIENTS 1. When F:NILA qualifying leave is foreseeable, an employee must give Monroe County thirty (30) days advance notice. 2. alien such leave is not foreseeable, an employee must give notice as soon as practicable. According to the F:NILA regulations, "as soon as practicable" means within one or t vo working days of learning of the need for leave, except in extraordinary circumstances. 3. If an employee fails to satisfy the thirty (30) day notice without reasonable excuse, Monroe County may, at its discretion, postpone the leave until the notice requirement is satisfied. 4. The employee may be required to submit periodic reports during FNILA leave regarding the employee's leave status and intent to return to work. This requirement may be satisfied by he employee's personally telephoning his or her immediate supervisor. F. HEALTH BENEFITS DURING LEAVE OF ABSENCE 1. Monroe County will continue group health coverage for an employee on leave at the same level and under the same conditions that existed while he or she was working. The employee must pay the dependent coverage premium for any unpaid leave. Payment for dependent coverage must be received in the Group Insurance Office even payday in order to continue coverage. Failure to pay dependent coverage during this unpaid leave will result in termination of coverage. 2. In the event that the employee does not return to N ork at Monroe County following F:NILA leave, the employee can be required to reimburse Monroe County for health insurance premiums paid to continue the employee's health coverage during FNILA leave, unless the employee is unable to return to work due to a continuation, recurrence, or onset of a serious health condition that would entitle the employee to F:NILA leave or other circumstances beyond the employee's control. Questions regarding the FNILA should be addressed to the Human Resources office. 8.06 DOMESTIC OR SEXUAL VIOLENCE LEANT Definitions "Domestic Violence" means any assault, aggravated assault, batten-, aggravated batten-, se--,�ual assault, se--,�ual batten-, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member. "Sexual Violence" is sexual batten, or lewd or lascivious acts committed on, or in the presence, of, someone under the age of 16; or luring or enticing a child; or sexual performance by a child; or any other forcible felony involving a sexual act, regardless of whether criminal charges were filed, reduced or dismissed. 52 of 77 Employees are permitted to request and take leave in connection «ith domestic or sexual violence under certain circumstances. This applies to employees who have been employed for 3 or more months. Eligible employees can tape up to 3 working days of leave in any 12 month period if the employee, or family- or household member of the employee, is the victim of domestic or sexual violence. Employees shall use annual or sick leave when available to corer this leave. This leave applies if the employee is: -Seeking an injunction for protection against domestic violence or an injunction for protection in cases of repeated violence, dating violence or sexual violence; -Obtaining medical care or mental health counseling, or both, for the employee or family or household member to address physical or psychological injuries resulting from the act of domestic or sexual violence; -Obtaining the services from a victim -services organization, including, but not limited to, a domestic or se_-ua1 violence shelter or program or a rape crises center as a result of a domestic or sexual violence act; -Making the employee's home secure from the perpetrator of the domestic or sexual violence or to seek new housing to escape the perpetrator; or -Seeking legal assistance in addressing issues arising from the domestic or sexual violence or attending and preparing for court -related proceedings arising from the domestic or sexual violence. Except in cases of imminent danger to the health or safety of the employee, family or household member, employees seeking such leave must provide their employer«ith appropriate advance notice of the leave as required by policy (see Section 7.01 C(2) and 7.02 C) along «ith sufficient documentation of the domestic or sexual violence act as required by the employer. All information relating to the employee's leave for domestic or sexual violence must be kept confidential. 53 0177 STANDARDS OF EMPLOYMENT, DISCIPLINARY ACTION AND APPEALS SECTION 9 9.01 INTENTION It is the intention of the Board of County Commissioners that effective supervision and employee relations «ill avoid most matters which necessitate disciplinary action. The purpose of rules and disciplinary action for violating such rules is not intended to restrict the rights of anyone; but to ensure the rights of all, and secure cooperation and orderliness throughout the County Service. For minor, non -serious offenses, whenever possible, the administration of discipline will be characterized as constructive, corrective and progressive. 9.02 RESPONSIBILITY FOR ADMINISTRATION It shall be the responsibility of the County Administrator, in cooperation with Division Directors and the Board of County Commissioners to assure that disciplinary action is fair and consistent throughout the Count- Service. 9.03 STANDARDS OF EMPLOYMENT For the protection of Monroe County government and each employee, the following rules for personnel conduct have been established. The list includes, but is not limited to, reasons which may require disciplinary action, up to discharge. A violation of any reasonable standard of employment, whether or not specifically listed herein, will result in appropriate disciplinary action, which may include discharge for the first offense, depending upon the seriousness of the offense. A. Willful or repeated violations of County, State or Federal law or of these policies and procedures. B. Insubordination - Refusal to respond to authority's reasonable request(s) or instruction. C. Misconduct - Behavior not conforming to prevailing standards - Misconduct may include, but is not limited to the following: Fighting or inflicting bodily harm on another person, gambling, dangerous horseplay, being under the influence or possession of illegal drugs or alcoholic beverages, immoral behavior, smoking in restricted areas, any violent act or language which adversely affects morale, production, or maintenance of discipline. Rudeness or acts of disrespect to members of the public, supervisors, or other employees; on duty or off duty. Employees shall not consume or be under the influence of alcoholic beverages, while on duty or in County uniform, nor shall then use or be under the influence of, consume or possess illegal substances while on duty, in County uniform or on County property at any time. D. Criminal, dishonest, infamous or notoriously disgraceful conduct adversely affecting the employer/employee relationship (on duty or off duty). E. Conviction of (or a plea of nolo contendere in connection with) a felony or gross misdemeanor, or conviction of a misdemeanor or ordinance violation involving moral turpitude. F. Theft or pilfering - Possessing, unauthorized use of, taping, removing, destroying or tampering with County property without proper authorization. 54 of 77 G. Fraud or Dishonesty - Falsification of County documents or records or failure to gitiTe complete information for personnel records. Intentionally making false statement either oral or written about the County, other employees, supervision, oneself or work situations. H. Absenteeism or Abuse of Sick Leave - Habitual or excessive absence from work, or failure to return to N ork promptly- upon expiration of leave or vacation. Excessive absences, even if caused by a legitimate illness, seriously impairs the County Is operations, and such absences may be grounds for separation. I. Tardiness - Failure to report to assigned work station on or before the scheduled starting time. J. Leaving Assigned Work Area - Except for emergency- reasons or N ith the Supervisor's approval, employees are not to leave their assigned work area. K. Misuse of Time - Sleeping or other acts of inattention or neglect of duty. Unauthorized sale of articles or services, distribution or posting of literature, canvassing, polling or petitioning. L. Abuse of County Policies and Procedures - Misuse or abuse of established County policies such as vacation, leave of absence, excused absence, sick leave, or anv rule, regulation, policy or procedure. M. Safety Violations - Unauthorized possession and/or use of w eeaons, ammunition or explosives. Failure to observe County and general safety practices and regulations. Neglect in the safety of others or the committing of unsafe acts in the use and care of County property or equipment. N. Illegal driving - Driving private or County vehicle while on County business when not possessing a valid Florida and County driver's permit or liability insurance, in accordance with the Monroe County Safety Policies. O. Malicious or Negligent Destruction of Property - Willful or malicious destruction of County property. Damage of property by failing to use proper equipment, care and good judgment. P. Incompetence or Inefficiency - Inability or failure to perform work of an acceptable standard after a reasonable trial and training period. Q. Discrimination in Employment - Discriminating against an employee or an applicant for employment because of race, color, national origin, sex, religion, creed, sexual preference, handicap or age as defined in State and Federal laws. R. Acceptance of unauthorized compensation. S. Misfeasance - The doing of a lawful act in an unlawful or improper manner so that there is an infringement on the rights of another. T. Smoking — Smoking of tobacco products is prohibited in all Monroe County owned or occupied public facilities (buildings), vehicles, elevators, meeting rooms, hallways, corridors, lobbies, water fountain areas, stain` ells and entryways. 9.04 DISCIPLINARY ACTIONS Disciplinary actions are a means of calling employees to accountability for some act of commission or omission which is regarded as injurious to the employer/employee relationship. The act could be relatively 55 of 77 minor, or quite serious. Serious acts may warrant immediate discharge, even for the first offense. All employees should be made a«are that a system of discipline exists for the benefit of all, and «ill be administered without favor for the sake of orderliness and proper compliance with reasonable rules and regulations pertaining to conduct and the performance of work. N\Iien it is necessary- that disciplinary- action be taken, the degree of action shall be based on the following considerations: 1. There can be no mechanical formula for the application of discipline. Each instance of misconduct or deficiency must be viewed and judged individually. For most lesser or first minor offenses, oral or written reprimand shall be appropriate discipline. 2. N\'hen applicable, discipline for employees who commit multiple non serious offenses of a like or different nature shall be more progressively stringent until the employee corrects the deficiency, or failing this, discharge is considered to be necessary. 3. Department, Division Directors, the County Administrator, their Deputies and others occupying positions of high trust and authority will be held to higher disciplinary and ethical standards than that of other employees. Therefore the rules of progressive discipline for violations of Personnel Policies and Procedures, and/or State and Federal Statutes may not be applicable. 4. Disciplinary- actions shall be severe enough to constitute a reasonable attempt to bring about correction. 3. Acceptable disciplinary actions shall be oral warning, written warning, written reprimand, suspension (with or without pay), discharge, and in some cases demotion, depending on the offense. 6. Discharge for continued commitment of non serious, minor offenses shall be resorted to only when sufficient other efforts to bring about correction have failed, or when the offense is sufficiently serious in and of itself to warrant termination. 7. In determining the appropriate disciplinary action to be imposed against an employee, the County Administrator will consider, at a minimum, the following factors: a. The seriousness and circumstances of the particular offense. b. The past record of the employee and his length of service. c. The lapse of time since the employee last received a disciplinary action. d. The County's practice in similar cases. 9.03 AUTHORIZATION FOR DISCIPLINARY ACTION A. All written reprimands, suspensions and recommendations for suspension or discharge actions must be approved by the Department Head and the Division Director and the letter concerning the action must be forwarded immediately to the Human Resources office for review, and then approved by the County Administrator or his designee. B. In case of a recommendation for discharge, the employee may be suspended pending approval of discharge by the County Administrator. 56 0177 C. Disciplinary actions applied to Department Heads or Division Directors may be initiated by the County Administrator. 9.06 ORAL WARNING An oral warning is given to an employee to tape recognition of a violation of County policy-, rule, regulation, standard or of an unsatisfactory habit, practice or act which, if repeated or continued, «ill subject the employee to a more severe disciplinary action. The oral warning should be noted in writing, a copy of the notation placed in the employee's official personnel file, specifying the nature of the warning and the date given. 9.07 WRITTEN REPRIMAND A letter of reprimand constitutes formal action against an employee for more serious types of violation of County rules or standards of employment, or where less stringent actions have not been successful in correcting a deficiency. The letter of reprimand must identify the offense or deficiency and the correction required. A letter of reprimand can be used to impose restrictions on an employee, such as attendance, conduct or special procedures to be followed. Restrictions so imposed shall be reviewed periodically and be removed, modified, or continued with a follow-up letter. A copy of all letters should be placed in the employee's official personnel file N ithin 15 days of writing, whenever possible. 9.08 DEMOTION Whenever it becomes apparent that an employee can no longer efficiently perform and or all of the duties and responsibilities of his or her position, or when it is othernvise deemed to be in the best interest of the County, an employee may be demoted. A demoted employee shall be notified by the County Administrator or his designee at the time of demotion of the specific reason for the action and correction expected, if anv. Such notification shall be given the employee in writing. A copy of the notification will be placed in the employee's official personnel file along with a written report on all appropriate information concerning the action An employee may be reclassified to a different title and/or pay grade at any time the County Administrator deems appropriate. A temporary reclassification does not constitute a demotion, nor does a change in title and/or pay grade which results from an evolution into a reduction of duties and/or responsibilities. 9.09 SUSPENSION 1. An employee may be suspended with or without pay by the Department Head and/or Division Director with the approval of the County Administrator. The employee must be notified in writing of the suspension period and citing the reason for the suspension. 2. An employee may be verbally suspended N ith or without pad- by a Supervisor for the balance of a N ork shift, or a longer period of time if needed until the Department Head or appropriate authority can be contacted, if the employee's conduct impairs normal working operations. The Supervisor must then report the incident to the Department Head, who with the approval of the Division Director must either concur with, or cancel the action, in writing, to the employee citing the reason for the suspension, and corrective action expected. Additional time of suspension may be recommended by the Department Head with the approval of the Division Director and the County Administrator at that time. A copy of 57 of 77 the suspension notification «ill be placed in the employee's official personnel file along with a written report containing all appropriate information concerning the action. 9.10 DISCHARGE Discharge is appropriate for first offenses of serious misconduct as N ell as repeated offenses of less serious misconduct. Sufficient documentation must be present to merit recommendation by the Department Head and the Division Director to the County Administrator for discharge of any employee. 9.11 PROCEDURE FOR IMPOSING DISCIPLINE 1. This procedure shall apply in cases where an employee may be subject to suspension demotion or termination. Furthermore, this procedure shall not necessarily apply to contract employees, probationary employees, temporary employees or grant employees. 2. When the County receives information that an employee has engaged in certain conduct which could warrant disciplinary action (other than a verbal warning or written reprimand which mad be issued b� the appropriate Supervisor) the employee will be advised, in writing, that disciplinary action could possibly be imposed against him/her. I The employee will be provided with a written statement of the charges including sufficient facts and reasons therefore as will enable the employee to provide an explanation and/or defense. An employee against whom disciplinary charges have been made will remain in pay status until such time as the County Administrator renders his decision pursuant to paragraph 6(e), below. However, nothing herein shall preclude the County Administrator, or other authorized personnel, from imposing immediate disciplinary action, without advance notice, where it is believed by the person taping that action that giving such notice would result in damage to the property of the County, would be detrimental to the interests of the County or would result in injury to the employee, a fellow employee, or the general public. In such circumstances, said employee will be given reasons for such action after it takes effect and thereafter will be entitled to utilize the hearing procedure set forth in the following paragraphs. 4. The hearing shall be informal and shall not be in the nature of an evidentiary hearing. The employee may bring an attorney or qualified representative to assist or advise him, but discovery, cross-examination, and similar legal procedures are generally not permissible. An employee who wants to engage in discovery, cross- examination, or other legal procedures must make an advance written application to the hearing officer. The hearing officer's decision is final. 5. The informal hearing will be conducted before a hearing officer who shall be: a. A Division Director or the County Administrator where the employee charged is a Department Head; b. The County Administrator or his designee where the employee charged is a Division Director; or c. A DitiTision/Department Head or a designee where the employee charged is an employee holding Career Service Status and to whom section A and B above do not apply. d. The County Administrator may serve as hearing officer whenever he/she sees a need to do so. 6. The hearing will be informal and will be conducted as follows: 58 of 77 a. At least two working days prior to the hearing date, the employee shall provide the individual conducting the hearing with a list of any witnesses or documents which the employee wishes to offer at the hearing. b. The employee may be accompanied by legal counsel of his/her choice. If the employee intends to be represented by counsel at said hearing, notice of such must be provided to the hearing officer as far in advance of the hearing as possible. The hearing officer may reschedule the hearing if necessary. c. During the hearing, the hearing officer will orally review the charges with the employee. The employee shall have the right to respond to the charge(s) made against him/her, either orally and/or in writing. The employee may present documentation to the hearing officer and may, if appropriate, be permitted to call witnesses in support of his/her case. d. The hearing officer may consider any available documentation and may discuss the charges with any witness he/she deems appropriate. The hearing officer shall decide what evidence -- either in the form of witness testimony or documents -- may be introduced. Cumulative or irrelevant evidence will not be permitted. e. The hearing officer shall render a final written decision within ten (10) calendar days after the hearing. In the event of extenuating circumstances, the final written decision may be extended beyond the ten (10) calendar days upon mutual agreement of the Hearing Officer and employee. Such an agreement shall be provided in writing from the hearing officer to the employee in order to officially document the agreement. The final decision shall advise the employee of whatever action, if any, the hearing officer is recommending to be taken against the employee. The hearing officer's recommendation will be forwarded to the County Administrator (through the appropriate Department and Division Director, if applicable). Disciplinary action (except for verbal warning and written reprimand, which may be issued by the appropriate Supervisor) becomes final when approved by the County Administrator. 7. Employees who are suspended without pay, discharged, given a reduction in pay or a demotion (as defined herein) may appeal said disciplinary actions only to the Career Service Council as provided in Section 9.15. Other forms of discipline may be appealed pursuant to Section 10. 8. During the period between the first notice and the effective date of the action, the employee shall be expected to perform his usual duties without disrupting fellow employees, or other persons, or the agency s activities. If, however, it is deemed highly desirable or necessary that the employee not continue to perform the same duties in the same location during this period, the County may temporarily assign the employee to other duties. 9.12 POSSESSION OF N\T—APON OR FIREARMS It is the policy- of Monroe County that no employee shall carry or othen`ise possess a N eapon while on duty or in uniform, including firearms. If the performance of job duties requires the use or possession of a weapon or firearm, prior approval from the County Administrator must be obtained. 9.13 INDICTMENTS, PROSECUTIONS, ARRESTS See Florida Statutes 790.251 59 0177 It is the responsibility- of Monroe Count- to maintain a proper N orkforce. Employees who are arrested, indicted by a Grand Jury, or on whom information has been filed by a prosecuting official, shall be given a pre -determination hearing to determine the effect said action and/or circumstances surrounding said actions have on his or her employment with the County, which may result in disciplinary action. If the employee is tried and found guilty and the conviction is not reversed he or she may be terminated from his or her position in the County Service. 9.14 FAILURE TO COOPERATE IN A JOB -RELATED INVESTIGATION 1. As a condition of employment, any County employee may be required, upon due notice, to cooperate with respect to any job -related hearing or investigation scheduled by the County, or any person, commission, board or body- authorized to act on its behalf. This duty- of cooperation also extends to any "outside" agency-, body- or court of lawwith respect to any job -related matters. 2. Any employee who refuses to appear at any such hearing or inquiry, or who having appeared fails to answer questions related to the performance of their official job duties will be considered to have resigned from their employment with the County. 9.13 APPEALS A Career Service employee who has been suspended without pav, discharged, given a reduction in pay or a demotion (as defined herein) shall have only the right to appeal said action to the Career Service Council by filing a petition with said Council within thirty (30) days following such suspension, discharge, reduction in pav, or demotion. Failure to file a timely appeal shall result in the forfeiture of all right to challenge/grieve the discipline. There shall be no appeals to the Board of County Commissioners and/or the County Administrator. 60 of 77 EMPLOYEE CO:N PLAINT/GRIEV-LANCE PROCEDURE SECTION 10 10.01 COA [PLAINT /GRIEVANCES In the event an employee believes that the rules contained in this manual have been misapplied/violated, he/ she must utilize the following procedure, except in the cases of suspension, demotion or termination - See 10.01 F. Failure of the grieving employee to follow the time limits will automatically result in a final and binding denial of the grievance. If the County does not follow the time limits, the appropriate County official will be deemed to have denied the grievance and it may proceed to the next step. A. Step 1: The aggrieved employee shall present his/her grievance orally- or in writing to his or her Supervisor within fifteen (15) working days of the incident to be grieved. Discussion will be informal for the purpose of resolving differences in the simplest and most direct manner. The immediate Supervisor shall consult with the Department Head, reach a decision, and communicate that decision orally or in writing to the aggrieved employee within ten (10) working days from the date the grievance was presented to him or her. Supervisors are not empowered to make policy decisions. B. Step 2: If the grievance is not resolved in Step 1, the employee shall reduce the grievance in N riting, sign it, and present it to the Supervisor. The Supervisor shall attempt to resolve the issue(s) concerning the alleged grievance within ten (10) working days of the receipt of the written grievance. Should the grievance still not be resolved at this point, it shall be presented to the Department Head for review. The Department Head shall confer with the immediate Supervisor and they shall attempt to obtain the facts concerning the alleged grievance, and within ten (10) working days of receipt of the N ritten grievance, answer the employee in writing or schedule a meeting with the employee. If a meeting is held, the Department Head shall notify the aggrieved employee in writing of his or her decision, no later than ten (10) working days after the meeting. The meeting may be rescheduled by the Department Head for a valid reason. C. Step 3: If the response from the Department Head is not satisfactory, the employee may present the grievance form to the Division Director, who may confer with anyone he/she deems appropriate to obtain the facts concerning the alleged grievance, and within ten (10) working days of receipt of the grievance, schedule a meeting with the employee. The Division Director shall notify the aggrieved employee in writing of his/her, decision no later than ten (10) working days after the meeting. D. Step 4: If the response from the Division Director is not satisfactory-, the employee may bring the grievance form to the Human Resources office, for review before the Employee Grievance Council. This Council will provide an additional avenue for the employee to pursue in the processing of appropriate complaints or grievances. By the establishment of the Employee Grievance Council, the employee whose problem is not resolved by the Division Director , may have the opportunity appear before this Council of peers and present his/her case. The Employee Grievance Council is empowered to call all necessary witnesses before them and to subsequently make their recommendations concerning disposition actions to the County Administrator. The decision of the Council is not binding; final determination will be made by the County Administrator. (Please refer to Monroe County Administrative Instruction 1003 for rules and procedures governing the Council.) The County Administrator shall furnish a copy of his decision to the aggrieved employee within fifteen (13) working days of receipt of the Councils recommendation(s). E. Any complaint/grievance involving matters that pertain to Personnel, Policy and Procedures may be addressed in writing to the Employee Grievance Council, (via the Human Resources office) who will forward to the Council to determine whether the matter is appropriate to be considered by the Council. If deemed 61 of 77 appropriate by a majority of Council members, the Human Resources office «ill schedule the airing of the Grievance at the earliest convenience. The Council is empowered to call all necessary witnesses and make a recommendation concerning disposition to the County Administrator whose decision is final. F. This Procedure does not apply to an individual who has been suspended, discharged, reduced in pay or demoted. Such individuals shall appeal in accordance to Section 9.15 hereof. G. If an employee does not answer to a Department Head and/or a Division Director, the Human Resources office will assist the employee in moving through the appropriate steps of this grievance procedure. H. The by-laws governing the establishment and operation of the Employee Grievance Council may be reviewed in Administrative Instruction 1005. L If the grievant feels the issue has not been satisfactorily- resolved, the employee may appeal to the CouiIty Administrator. 62 of 77 SEPARATIONS SECTION 11 11.01 RESIGNATIONS A resignation is defined as an action whereby an employee voluntarily leaves the County Service with or without the giving of notice and/or as and employee conduct which is stated herein to constitute a resignation. Art employee wishing to leave the County Service in good standing shall file with the Department Head a written letter of resignation stating the date and reasons for leaving, 14 calendar days prior to the effective date of resignation. Failure to comply with this requirement may be cause for denying such employees re-employment rights and payment of unused leave. Unauthorized absences of three (3) days or more may be considered a resignation. 11.02 LAYOFFS Should it become necessary to abolish a position or reduce the number of County employees because of lack of work, shortage of funds, re -organized and transferred functions to an existing County employee, or for other legitimate reasons, the County Administrator/Board of County Commissioners may lay off as many employees as required, after two weeks notice. There shall be no appeal except the internal grievance proceedings. No regular employee shall be laid off while there are temporary or probationary employees searing in the same class in the same department. Such laid off employees shall be gitiTen priority of re -hire, in the event the position(s) is/are re-established, based on seniority and pretiTious performance evaluations, for a period of time to their length of continuous service, but not to exceed one year. Such employees will also be eligible for promotional opportunity privileges for a period of one year after date of lad --off. 11.03 RETIREMENT Employee benefits upon retirement will be based upon the regulations of the State and County Government, Emplovees Retirement System Lai`, Social Security Act, and any other provisions which mad- be in effect at the time of retirement. 11.04 DISCHARGES A discharge occurs when an employee has been involuntarily separated from County Service, usually for cause. Employees discharged for disciplinary reasons may not be eligible for re -hire and may lose all seniority and reinstatement privileges 11.05 EMIT INTERVIEWS It is the desire of the County to determine why good employees leave the County Service. Art exit interview program has been established for the purpose of determining the causes and possible solutions of turnover among County personnel. If an employee N ishes, lie or she may request an exit interview N ith Employee Services by contacting the Human Resources office. The Employee Services Division Director or County Administrator may also request an interview with an employee who has made known his or her intention to leave the County Service. The information obtained during the interview will be used solely for the purpose of identifying or solving problem areas and will not become part of the employee's personnel record unless authorized in writing by the employee. 63 of 77 SOLICITING SECTION 12 12.01 SOLICITING 1. No employee shall be permitted to solicit any other employee during working time. Forking time means the time when either employee (solicitor or solicitee) is on duty and not on an authorized break or meal period. 2. No employee shall be permitted to distribute leaflets, notices or other materials, or pass petitions during working or non -working time in work areas. Such distribution can take place only in non -work areas and during non -working time. 3. No non -employee shall be permitted to enter County premises or property at any time for the purpose of soliciting employees or distributing or posting any written, printed or other material except in those areas customarily open to the public or vendors. 4. Limited exceptions to the above rules may occur but only upon application to and approval by the County Administrator. 3. It is intended that the above rules shall be interpreted and applied in accordance with applicable law. 64 of 77 EMPLOYEE PERFORMANCE EVALUATIONS SECTION 13 13.01 POLICY All Departments shall evaluate the performance of all employees on an impartial basis using standard evaluation forms and the Employee Performance Appraisal Handbook provided in Administrative Instruction 4003. 13.02 PURPOSE Employee performance evaluations shall be used for, but not limited to, the following purposes: A. To inform the employee of strong and weak points in his performance, as well as training needs and improvements expected. B. To recognize the employee's potential for promotion. C. To determine the employee's eligibility for merit salary advancements. D. To provide a record of past performance. E. To assist in determining the order of layoffs and reinstatements. 13.03 PROCEDURES A. Each employee shall have his performance evaluated on a periodic basis as outlined in the Performance Appraisal Handbook 1. All performance evaluations shall be made by the employee's immediate Supervisor (with input from anyone deemed appropriate by the Supervisor) and reviewed by a higher level Supervisor whenever possible. The immediate Supervisor's final evaluation shall not be changed by higher level Supervisors; however, reviewing Supervisors shall certify- that they reviewed the rating and mad- attach any written comments they deem appropriate concerning the evaluation. 2.Department Head may authorize an evaluation at any time he or she deems appropriate. 3.The original, completed evaluation form, as well as anvwritten material from the Supervisor, the Department Head, or the employee, shall be placed in the employee's official Personnel File. B. If an employee receives a below satisfactory rating in and- category, the immediate Supervisor shall N ork with the employee in an effort to assist him/her in improving job performance. Such employees, if retained by the department, shall have their performance re-evaluated in the category(s) which do not meet performance standards. 65 of 77 EMPLOYEE INSURANCE COVERAGE SECTION 14 14.01 COVERAGE All full-time, regular employees are covered by life and accidental death and dismemberment insurance paid for by the County. The amount of such insurance is determined by the Board of County Commissioners. Group hospitalization insurance coverage for full-time employees is paid for by the County at a rate approved by the Board of Commissioners. Dependent coverage «ill be available for those eligible at group rates, paid for by the employee. The County may change its benefit program at and- time, for example, by adjusting benefits, changing employee contributions, changing deductibles, and/or selecting other insurance carriers. 14.02 DEFINITIONS+ A. Domestic Partners. "Domestic Partners" are two adults who have chosen to share one another's lives in a committed family relationship of mutual caring. Two individuals are considered to be Domestic Partners i£ 1. they consider themselves to be members of each others immediate family; 2. they agree to be jointly- responsible for each other's basic living expenses; 3. neither of them is married or a member of another Domestic Partnership; 4. thev are not blood related in a way that would prevent them from being married to each other under the laws of Florida; 5. each is at least of the legal age and competency- required by Florida lay` to enter into a marriage or other biding contract; 6. they must each sign a Declaration of Domestic Partnership as provided for in Section 14.03; 7. they both reside at the same residence. B. Joint Responsibility for Basic Living Expenses. `Basic living expenses" means basic food and shelter. "Joint responsibility' means that each partner agrees to provide for the other's basic living expenses while the domestic partnership is in effect if the partner is unable to provide for him or herself. It does not mean that the partners must contribute equally or jointly to basic living expenses. C. Competent to Contract. "Competent to Contract" means the two partners are mentally competent to contract. D. Domestic Partnership. "Domestic Partnership" means the entity formed by two individuals who have met the criteria listed above and file a Declaration of Domestic Partnership as described below. E. Declaration of Domestic Partnership. "Declaration of Domestic Partnership" or "DDP" is a form provided by the Human Resources Director. By signing it, two people swear under penalty of perjury that they meet the requirements of the definition of domestic partnership when they sign the statement. The form shall require each partner to provide a mailing address. F. Dependent. "Dependent" means an individual who lives within the household of a domestic partnership and is: 1. A biological child or adopted child of a domestic partner; or & ReSolution 081-1998 66 of 77 2. A dependent as defined under County employee benefit plan document. 3. A ward of a domestic partner as determined in a guardianship proceeding. G. Employee means an employee of the Board of County Commissioners, the constitutional officers or the Mosquito Control Board, except where the context is othernvise. 14.03 ESTABLISHING A DOMESTIC PARTNERSHIP A. An employee and his/her domestic partner as set out in Section 14.02 are eligible to declare a Declaration of Domestic Partnership (hereafter DDP) in the presence of the Human Resources Director, or the employee partner may present a signed and notarized DDP to the Human Resources Director. The DDP shall include the name and date of birth of each of the domestic partners, the address of their common household, and the names and dates of birth of anv dependents of the domestic partnership, and shall be signed, under the pain and penalties of perjury, by both domestic partners and witnessed (two) and notarized. B. As further evidence of two individuals being involved in a domestic partnership, to of the following documents must be presented alongwith the DDP to the Human Resources Director: 1. A lease, deed or mortgage indicating that both parties are joint responsible; 2. Driver's licenses for both partners showing the same address; 3. Passports for both partners showing the same address; 4. Verification of a joint bank account (savings or checking) 5. Credit cards with the same account numbers in both names; 6. Joint wills; 7. Powers of attorney; or 8. Joint title indicating that both partners own a vehicle. C. An individual cannot become a member of a domestic partnership until at least six months after any other domestic partnership of which she or he was a member has ended and a notice that the partnership has ended was given as provided for in Section 14.04. This does not apply if their domestic partners deceased. D. Domestic partners may amend the DDP to add or delete dependents or change the household address. Amendments tot he DDP shall be executed in the same manner as the declaration of a domestic partnership. 14.04 TERMINATION OF A DOMESTIC PARTNERSHIP A. A domestic partnership is terminated when: 1. one of the partners dies; 2. one of the partners marries; or 3. a domestic partner files a termination statement with the Human Resources Director. A domestic partnership may be terminated by a domestic partner who files with the Human Resources Director by hand or by certified mail, a termination statement. The person filing the termination statement must declare under pain and penalties of perjury that the domestic partnership is terminated and that a copy of the termination statement has been mailed by certified mail to the other domestic partner at this or her last know address. The person filing the termination statement must include on such statement the address to which the copy was mailed. B. The termination of a domestic partnership shall be effective immediately upon the death of a domestic partner. The voluntary termination of a domestic partnership by a partner shall be effective thirty (30) days after the receipt of a termination statement by the Human Resources Director. If the termination statement is withdrawn before the effective date, the domestic partner shall give notice of the withdrawal, by certified mail, to the other domestic partner. 67 of 77 C. If a domestic partnership is terminated by the death of a domestic partner, there shall be no required waiting period prior to filing another domestic partnership. If a domestic partnership is terminated by one or both domestic partners, neither domestic partner may file another domestic partnership until six (6) months have elapsed from effective termination. D. It is the obligation of the employee domestic partner to notify the Human Resources Director of the termination of a domestic partnership as soon as possible after it occurs. 14.05 HUMAN RESOURCES DIRECTOR RECORDS A. The Human Resources Director will keep a record of all employees DDPs, Amendments and Termination Statements. The records will be maintained so that DDPs, Amendments and Termination Statements N ill be filed to which they apply-. B. The Human Resources Director shall identify on the DDP what type of documents was presented for further verification of the domestic partnership. C. Upon determination by the Human Resources Director that the DDP is complete and that further evidence of the domestic partnership has been presented as provided in Section 14.03 (B); the Human Resources Director shall provide the employee with a copy of the DDP. The employee/domestic partner shall become eligible to elect domestic partnership health and other employee fringe benefits as protiTided in Section 14.06. It will be the employee's responsibility to notify the Employee Benefits Section of their intent to enroll the domestic partner and/or any eligible dependents under the Monroe County Employee Benefit Plan. Domestic partner/dependents enrolled in the Monroe County Employee Benefit Plan are subject to the same rules and provision applicable to covered spouses/dependents. D. The Human Resources Director shall provide forms to employees requesting them. E. The Human Resources Director shall allow public access to domestic partnership records to the same extend and in the same manner as any other public record. 14.06 EMPLOYMENT BENEFITS A. The County shall provide the same health and other employment fringe benefits to employees with domestic partners as to employees with spouses. As used in this section, "employees" refers to active and retired employees of Monroe County that are eligible for benefits pursuant to state law, County Ordinances, County employment policies, and collective bargaining agreements. B. The County shall provide health insurance and benefit coverage to an employee's domestic partner as it does to an employee's spouse, and to the dependent's of an employee's domestic partnership as it does to an employee's child(ren). An employee may opt to decline health insurance coverage for her or his domestic partner, without foregoing the right to obtain health insurance coverage or her or his domestic partner during a future open enrollment period. C. Upon termination of a domestic partnership by an employee, the non -employee domestic partner health insurance and benefits lapses. If the employee domestic partner leaves employmentwith the County, the health and benefit package of the non -employee domestic partner shall lapse on the date that the former employee's insurance lapses. D. Upon termination of a domestic partnership by the death of an employee, the surviving domestic partner's health insurance and benefits coverage shall lapse as it would for the spouse of a married employee, upon the death of such employee. E. Board of County Commissioner employees shall be granted a leave of absence, N ith pad-, for the death of a domestic partner or family member of a domestic partner to the same extent as for a spouse or family member of a spouse. Use of the term "in-law" in employee handbooks shall include the relatives of a domestic partner. 68 of 77 F. Board of County Commissioner employees shall be granted sick leave to care for a domestic partner to the same extent permitted to care for a spouse, and to care for a dependent of a domestic partnership to the same extent permitted to care for a child. G. Board of County Commissioner employees shall be entitled to take parental leave to take care of a child born to his/her domestic partner or a newly adopted child to the same extent as a married person. 14.07 LIMITATION OF LIABILITIES A. Nothing in this ordinance shall be interpreted to contravene the general laws of this state. B. Nothing contained in this Ordinance shall be construed to impose liability upon a domestic partner for the health or health expenses of his or her domestic partner. 14.08 FORMS A. The Human Resources Director shall distribute copies of the following forms to those individuals who request them: 1. Declaration of Domestic Partnership 2. Domestic Partnership Information Sheet 3. Amendment to Declaration of Domestic Partnership 4. Termination Statement of Domestic Partnership. 69 0177 TRAVEL SECTION 15 15.01 TRAVEL It shall be the policy of the Board of County Commissioners to reimburse all employees, Board members and other Department personnel for all authorized travel. Said reimbursement shall be made in the following manner: A. In County overnight travel will require the approval of the Department Head. Out of County travel will require the prior approval of the applicable Division Director or County Administrator. If travel is to anv county contiguous to Monroe County or if the travel can be completed within one workday, not requiring overnight lodging, prior approval of the next -highest supervisory level can be obtained. B. Private use of individual vehicles for county business shall be reimbursed for travel mileage in accordance with Monroe County Code. C. Employees who use their personal vehicles for approved County travel shall be reimbursed in accordance with the information reflected on the reverse side of Form #C676. These employees should be aware that they may be subject to periodic odometer audit(s), and that the employee's personal auto insurance is primary parer in case of an accident while or County business. D. Individuals shall be entitled to per diem while on official travel in accordance with provisions contained in Monroe County Code, except the Board may authorize the reimbursement of actual expenditures where documented evidence is provided justifying actual expenses incurred. E. The County Administrator shall authorize reimbursement for lease, rental cars and/or aircraft where it is deemed by the County Administrator to be the most advantageous to the County. Employees are to waive all insurance on rental car contracts, and no reimbursement for insurance costs shall be authorized under this section. F. All requests for travel reimbursement shall be submitted in writing on State of Florida Voucher for Reimbursement of Travel Expenses which shall give date(s) of travel, purpose, all applicable receipts, and amount due the traveler. Advance payment for travel must be requested by submitting voucher form for approval by the applicable Division Director or County Administrator. G. Travel shall be the most economical and practicable method available. 70 of 77 APPEARANCE SECTION 16 16.01 APPEARANCE AND PROPER ATTIRE All County employees should strive to be as neat and clean in appearance as possible. Proper attire conducive to carrying out the functions of their respective positions should be «orn by all employees. The Department Head «ill be responsible to insure that the appearance of his or her employees properly represents Monroe County in relation to their positions. Proper clothing and equipment needed to insure employee safety is required to be utilized at all times in accordance N ith the Monroe Count- Safety- Policies. 71 of 77 VIOLENCE IN THE WORKPLACE SECTION 17 17.01 The purpose of this policy is to provide a safe environment for conducting County business for employees, visitors, clients, and customers by prohibiting, preventing, and taping action in response to work - related acts of violence. 17.02 Definitions: 17.03 Procedures: For the purpose of this policy, acts of violence include, but are not limited to: 1. verbal abuse, assault, threatening or obscene language or behavior, or 2. aggressive, harmful, dangerous, or violent physical actions, or 3. actions which endanger county employees, directly or incidentally, or 4. improper or dangerous use or display of any weapon or object used as a N eapon. For the purpose of this policy, work -related acts include, but are not limited to, those which: 1. take place on County premises and affect county property, employees or representatives, or 2. involve one or more County employees or representatives, acting in their official County capacity, or 3. may occur off of County premises, but are related to County business, or 4. may occur outside of normal working hours, but are related to County business or 3. involve the use of County equipment, vehicles, communications equipment (phones, radio, F-AX, etc.). A. The County will take prompt remedial action against any employee, visitor, client, or customer who engages in any behavior prohibited by this polio-. B. The County will establish security measures, to the extent practical, to ensure that County facilities are safe and secure against actions prohibited by this polio-. C. Employees, supervisors, etc. will take reasonable immediate action to protect victims of violent actions from further harm. Actions which will increase any danger should be avoided. When necessary, local law enforcement agencies must be notified as soon as possible. D. After any imminent danger or threat has been dealt with, an employee, manager, supervisor, etc. has a duty to notify their immediate supervisor, Safety Administrator, Risk Manager, or other appropriate person of any incident or activity which is in violation of this policy. Reports made pursuant to this policy will be held in confidence to the extent possible. The Countywill not tolerate any form of retaliation against anyone who makes a report under this policy. 72 of 77 E. The Human Resources office shall be notified of any prohibited acts by the affected employee, their supervisor, or other appropriate person, as mentioned in the preceding paragraph. Personnel shall determine the extent of remedial and disciplinary action to be taken. In making this determination, Human Resources may consult«ith employees, supervisors, safety or risk management representatives, lay` enforcement officials, etc. Disciplinary action taken against employees who violate this policy N ill be carried out in accordance «ith Monroe County Personnel Policies and Procedures. 73 of 77 CHILDREN IN THE NVORK ENVIRONMENT SECTION 18 1. The Purpose of this section is to establish the policy of the Administration concerning Monroe County employees bringing children into the County work environment during normal working hours. A. It is the policy of this Administration that County employees shall not routinely bring children into the County work environment during the applicable employee's normal working hours. B. It is recognized that circumstances may arise wherein an employee's option with regard to caring for their dependent children may be restricted for any number of reasons. Generally, it would be expected that the employee would utilize vacation or sick leave, as appropriate, to resolve said matters. However, on the rare occasion where there are no other alternatives, and/or the work requirements are such that the employee's presence is mandatory, the Division Director or Department head may grant a special exception. C. A Division Director or Department head may grant a special exception in response to unusual or emergency circumstances which would, for a very limited, specific period of time, permit an employee to bring children into the environment. The applicable Division Director or Department head shall then formally authorize said special exception in writing by completing the "Children in the Fork Place Form" and routing the original to the Human Resources Department via the appropriate Division Director and the County Administrator, prior to the day the child is expected to be present. D. It is incumbent upon all Division Directors/Department Heads to insure that permitting children in the work environment is a rare exception and not the rule and that the special exception provisions provided above are not to be abused. E. The parent(s) shall be responsible for the proper behavior of the child while in the workplace. F. Children are not permitted in County vehicles at any time. G. Children are totally barred from certain high -risk jobs and work locations (such as construction sites). H. The County Administrator has the authority to waive the policy for special events (such as Daughter/Son At -Work Days. 74 of 77 CASH MANAGEMENT PROCEDURES SECTION 19 To establish a standardized cash management procedure that «ill eliminate the risk of loss or misappropriation of funds. 1. All Divisions/Departments «ill have in effect a policy for all cash funds received to be deposited as quickly as possible, but in any event, not later than three (3) business days from receipt. 2. Check vouchers should be date stamped. In cases where there is no voucher attached, papernv ork corresponding to the transaction should indicate the date of the check's receipt. 3. Advise OMB of the appropriate employees in each Division/Department who «ill be responsible for the cash deposits of the polio-. 4. Division Directors and Department Heads are responsible for periodically reviewing the cash management procedure «ith their departments to ensure efficiency and compliance «ith this polio. 75 of 77 FIRE ALARM PROCEDURES SECTION 20 The purpose of this instruction is to establish the procedure for building occupants to adhere to when fire alarm systems located within County facilities annunciate. The definition of annunciate is to announce the alarm system. I. When a fire alarm system located in a County Facility annunciate, building occupants are to turn off all electrical equipment that will not delay their exit; and shall immediately evacuate the building, reporting to their designated assembly area in accordance with posted fire evacuation plans located throughout County Facilities. 2. Emphasis shall be placed on orderly evacuation under proper discipline, rather than on speed. 3. Once in the assembly area, each Office Representative will account for their personnel. 4. All personnel will remain in the designated assembly area, well clear of the building, until released by the Fire Department and/or a representative from the Monroe County Public Forks, Facilities Maintenance Department. 3. Constitutional Officers, Division Directors, and Department Heads are to ensure that all employees under their purview familiarize themselves N ith this policy- and Reference A —Monroe County Safety Policies and Procedures Manual, alongwith the designated assembly area. 6. Constitutional Officers, Division Directors, Department Heads, and Monroe County Safety Administrator are to ensure evacuation routes are posted on bulletin boards throughout County Facilities, to include an assembly area for each office to report to, in the event of a fire evacuation. 7. Constitutional Officers, Division Directors, and Department Heads shall assign one person from each office the responsibility of accounting for each employee that works in their office, in the event of a fire evacuation. 76 of 77 Municode Page 1 of 5 Monroe Counts FloridaS Code of Ordinances >> PART I - GENERAL ORDINANCES >> Chapter 2 - ADMINISTRATION >> ARTICLE Ill. OFFICERS AND EMPLOYEES >> DIVISION 5. - COUNTY ATTORNEY >> DIVISION 5. - COUNTY ATTORNEY Sec. 2-175. - Establishment of the count attorney' torney's,office. Sec. 2-176. -Min imum_e_ualifications forraapt ointment as_ —in attomey. Sec 2 177.- Employment status cfuthe coun attomey; vacancy in nnQiflnn. Sec 2 178 Assistant count+ attome s_ Sec 2-179. - Duties of the county attorney Sec. 2-180. - EmQloyment of outside counsel. Sec. 2-181.,-Office management and supgprt Staff., Sec 2-182. - County attorney_to immediately defend all actions atalnst the county. Sec 2 18.3, Defense of civil actions a ainsstt the ,coun _attome or assistant county attomey- Sec 2 184, - Settlement of claims and l tittat on. Sec 2 185. - Settlement of code. enforcement and other Ilene Sec 2 186. - Recou ment of attorneys' fees and costs, Secs. 2-187-2-2-189. - Reserved. Sec. 2-175. - Establishment of the county attorney's office. There is hereby established the office of the county attorney. The office of the county attorney shall be directly responsible to the board of county commissioners (the board), and shall be independent of and not subject to the supervision or authority of the county administrator. All prior actions of the board relating to the office of the county attorney are hereby ratified and reaffirmed. (Code 1979. § 2-354; Ord. No. 039-2004, § 1) Sec. 2-176. - Minimum qualifications for appointment as county attorney. (a) The county attorney, at the time of appointment, shall have been a member in good standing of the Florida Bar for ten years or more immediately prior to appointment as county attorney, with at least three years experience during those ten years, in local government law (county, municipal, special purpose district, or school district), environmental law, administrative law, labor and employment law, or any combination thereof. (b) The county attorney shall be appointed by an affirmative vote of not less than three members of the board. (c) The county attorney need not be a resident of the county at time of appointment, but during tenure in the position shall be a full-time resident of the county. (Code 1979, § 2-355; Ord. No. 039-2004, § 1) Sec. 2-177. - Employment status of the county attorney; vacancy in position. (a) The county attorney shall serve at the will and pleasure of the board. (b) The county attorney is a direct employee of the board, and responsible only to the board. (c) The county attorney is not subject to the provisions of Laws of Fla. ch. 69-1321 (the Monroe County Career Service Act), but must be employed pursuant to a written employment contract mutually agreed to by the county attorney and the board. The contract must, at a minimum, contain provisions for the following: (1) The term of the contract, that must be a minimum of four years; (2) The initial salary together with the basis for any increases in salary, travel allowance, and other benefits; (3) Vacation leave and sick leave if different from that provided in the county personnel policies; and http: //library.municode.com/print. aspx?clientID=14298&HTNMecluest=htty%3 a%2f%2fli... 9/30/2010 Municode Page 2 of 5 (4) Termination of employment with or without cause. (d) For purposes of the Florida Retirement System, F.S. ch. 121, the position of county attorney shall be designated and maintained as a senior management service class position consistent with the provisions of F.S. § 121.055. (e) The position of county attorney shall be deemed vacant if the incumbent: (1) Dies; (2) Is removed by action of the board of county commissioners; (3) Resigns; (4) Moves his residence from the county; or (5) Is unable to continue in office due to illness or other casualty for a period of 90 days or more. M If the position becomes vacant, the board shall designate an attorney to serve as interim county attorney until a successor has been duly appointed or employed. (Code 1979, § 2-356; Ord. No. 039-2004, § 1) Sec. 2-178. - Assistant county attorneys. The county attorney shall be responsible for overseeing and approving the selection, hiring, supervising, disciplining, and termination of all assistant county attorneys. Assistant county attorneys who have successfully completed the probation period set forth in the county personnel policies shall be career service employees under Laws of Fla. ch. 69-1321 or other applicable local, state, or federal ordinance or law. The number of assistant county attorneys to be employed to carry out the duties of the office of county attorney shall be as deemed necessary by the county attorney, subject to the budgetary approval of the board. Each assistant county attorney shall be a member in good standing of the Florida Bar and shall remain a member in good standing during the term of his employment. (Code 1979, § 2-357, Ord. No. 039-2004, § 1) Sec. 2-179. - Duties of the county attorney. (a) The county attorney shall represent the board as the board's county attorney, and either personally or through one or more assistant county attorneys or selected outside counsel: (1) Provide legal advice concerning county business to the board when the board is in public session and to individual commissioners upon request or when the county attorney deems it advisable to do so; (2) Provide legal advice concerning county business to the county administrator, division directors and department heads when requested or when the county attorney deems it advisable to do so, provided legal advice shall be furnished according to such procedures the county attorney may deem necessary to ensure the consistency and quality of advice provided; (3) Provide legal advice, when legally and ethically permitted, to the administrative and advisory commissions and committees established by the board concerning the official duties and responsibilities of those commissions and committees; (4) Cause to be prosecuted and defended all causes of actions on behalf of the board and county regardless of whether such action is legal, equitable or administrative in nature; or whether civil, criminal, or a violation of ordinance, to include litigation at both the trial and appellate levels, administrative hearings and appeals, mediation, and labor arbitration appeals in which the county, the board, or a county department or agency under the jurisdiction of the board is party; and including prosecution of code enforcement cases before the code enforcement board, a code enforcement special magistrate, or in county court; (5) Provide for the defense of all current and former county officers and employees in their personal and official capacities, against any noncriminal action, regardless of whether the action is legal, equitable or administrative in nature, arising out of an act, or omission, undertaken or omitted in the course of the officer's or employee's county duties or employment, when authorized to do so by the board; (6) Review and, if authorized by law, object to payments to conflict counsel and expert witnesses in criminal cases, and the release of sureties from the obligations of bail bonds, to the extent that such review is the responsibility of the county by state general or special law; (7) Provide a report at each regular board meeting listing ongoing litigation and the nature thereof, together with other legal matters that the county attorney deems advisable to bring to the attention of the board; (6) http://library.municode. con/print. aspx?clientlD=14298&HTMRequest=htty%3 a%2f%2fli... 9/30/2010 Municode Page 3 of 5 Enter into agreements with the state attorney and public defender relating to the prosecution and defense of county ordinance violations, and enter into agreements with municipalities relating to the prosecution of city ordinance violations; (9) Coordinate the preparation and codification of county ordinances and establish procedures, formats, and processes for initiating, revising, and finalizing proposed ordinances to be submitted to the board of county commissioners for adoption; (10) Attend all meetings of the board of county commissioners; and (11) Perform such other lawful duties as the board may direct or as may be provided for elsewhere in this Code. (b) The office of the county attorney may provide legal advice to other county constitutional officers but only to the extent that no conflict or potential conflict exists between the other constitutional officer and the board with respect to the subject upon which the other constitutional officer seeks advice. (c) The county attorney and assistant county attorneys may not undertake the legal representation of private clients or provide legal advice to private clients, without regard to whether such representation or advice is provided in exchange for a fee or is provided on a pro bono basis, unless the board of county commissioners grants an exception specific to the attorney on a case -by -case basis for the purpose of allowing the attorney to handle legal matters for family members, and only if the matter would not create a conflict of interest. If a particular matter requires attention prior to the next county commission meeting, the attorney may provide legal services to a family member only on matters that the county attorney deems not to be a conflict of interest with the legal interests of the county after receiving temporary approval of the request from the county mayor. The county attorney's office shall place an item on the agenda for the next commission meeting, regardless of whether the agenda deadline has passed, for consideration of the request by the board. (d) During the term of employment, the annual costs and fees assessed by the Florida Bar to maintain membership in good standing in the Florida Bar and the local government section of the Florida Bar shall be paid by the county on behalf of the county attorney and each assistant county attorney. (Code 1979, § 2-358, Ord. No. 039-2004, § 1; Ord. No. 009-2009, § 1) Sec. 2-180. - Employment of outside counsel. When the county attorney determines that the best interests of the county would be served by using the expertise of outside counsel, the county attorney shall request that the board retain the outside counsel recommended by the county attorney. If the board concurs with the county attorney's recommendation, then the board shall retain the outside counsel through a standard engagement contract prepared by the county attorney and approved by the board. The engagement contract must contain, at a minimum, a description of the legal services to be provided and the fee, or basis of the fee, to be paid for such services. No fee may be paid to outside counsel without the review and approval of the county attorney or the county attorney's designee. (Code 1979, § 2-359; Ord. No. 039-2004, § 1) Sec. 2-181. - Office management and support staff. (a) Personnel. The county attorney shall be responsible for overseeing and approving the selection, hiring, supervising, disciplining, and termination of all staff and support personnel of the office of county attorney and shall employ such staff and support personnel that the county attorney determines are needed to carry out the duties of the office, subject to the budgetary approval of the board. Staff and support personnel who have successfully served the probation period set forth in the county personnel policies shall be career service employees under Laws of Fla. ch. 69-1321. (b) Rules and procedures. The county attorney may establish such reasonable rules and procedures for the management of the county attorney's office and office personnel that the county attorney deems necessary, provided that the rules and procedures do not conflict with Laws of Fla. ch. 69-1321, or other applicable state or federal laws. (c) Specialization. In order to encourage, promote, and maintain special expertise in local government law, the board recognizes that The Florida Bar, under the aegis of the Florida Supreme Court, has adopted a special certification program for attorneys in city, county, and local government law, and that it would be to the benefit of county government to have such specially certified attorneys in the county attorney's office. Accordingly, each county attorney and assistant county attorney shall receive the sum of $250.00 per month for each month in which he obtains and maintains certification in city, county, and local government law. (Code 1979, § 2-360, Ord. No. 039-2004, § 1) http://library.municode.comlprint.aspx?clientlD=14298&HTMRequest=htty%3 a%2f%2fli... 9/30/2010 Municode Page 4 of 5 Sec. 2-182. - County attorney to immediately defend all actions against the county. The county attorney has the authority to immediately defend any action against the county without first seeking board approval. The county attorney shall advise the board of the action at the next available board meeting (subject to the notice requirements of F.S. § 286.011(8), R a closed meeting is to be used). (Code 1979, § 2-361; Ord. No. 039-2004, § 1) ISec. 2-183. - Defense of civil actions against the county attorney or assistant county attorney. (a) The county shall provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of the county attorney or any assistant county attorney arising out of and in the course and scope of his employment or function, unless, in the case of a tort action, the county attorney or assistant county attorney acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Defense of such civil action includes, but is not limited to, any civil rights lawsuit seeking relief personally against the county attorney or assistant county attorney for an act or omission under color of state law, custom, or usage, wherein it is alleged that such county attorney or assistant county attorney has deprived another person of rights secured under the Federal Constitution or laws. Legal representation of the county attorney or an assistant county attorney shall be provided by outside counsel selected by the county administrator with the consent of the county attorney. Any attorney's fees paid from county funds on behalf of the county attorney or assistant county attorney who is found to be personally liable by virtue of acting outside the scope of his employment or was acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, may be recovered by the county in a civil action against the county attorney or assistant county attorney, as appropriate. (b) Payments for any judgments and settlements arising out of an act or omission of the county attorney or assistant county attorneys shall be made by the county pursuant to F.S. § 111.071. (c) The provisions of this section shall be applicable to retired or former county attorneys and assistant county attorneys, for the acts and omissions described in subsection (a) of this section that occurred when such individuals were employed by the county. (Code 1979, § 2-362, Ord. No. 039-2004, § 1) State law reference —Defense of civil actions against public officers, employees or agents, F.S. § 111.07. Sec. 2-184. - Settlement of claims and litigation. The county attorney shall have the authority to settle any claim made by or against the county and settle on behalf of the county any lawsuit in which the county is a party. Settlement authority may be exercised under the following conditions: (1) By the county attorney, in his judgment, when the settlement value or amount to be paid or received by the county does not exceed $15,000.00; (2) By the county attorney, with the written concurrence of the county administrator, when the settlement value or amount to be paid or received by the county is in excess of $15,000.00 and does not exceed $25,000.00; and (3) By the county attorney, with prior approval of the board lawfully authorized at a public meeting of the board, where the settlement value or amount to be paid or received by the county is in excess of $25,000.00. (Code 1979, § 2-363, Ord. No. 039-2004, § 1; Ord. No. 026-2005, § p Sec. 2-185. - Settlement of code enforcement and other liens. The county attorney shall have the authority to compromise or settle any code enforcement lien or other lien imposed in favor of the county that has been imposed pursuant to law. Such settlement or compromise shall be upon such terms and conditions, and in such amount, as the county attorney deems just and appropriate under the particular circumstances. If a settlement or compromise is agreed to by the person or entity legally obligated to pay the lien, the county attorney may execute, on behalf of the county, any document http://library.municode.comlprint.aspx?clientID=14298&HTMReauest=httD%3a%2f°Io2fli___ 9/10/2010 Municode Page 5 of 5 that may be required for recording in the public records of the county to satisfy or release the lien as imposed. If no agreement can be reached, the matter shall be placed by the county attorney on the agenda of a scheduled public meeting of the board of county commissioners as an action item. (Code 1979, § 2-364, Ord. No. 039.2004, § 1) Sec. 2-186. - Recoupment of attorneys' fees and costs. In all proceedings in which the county may have the right under federal or state statutory or case law, or by contract, to seek reimbursement for attorney's fees, charges, or other costs incurred by the county attorney's office personnel, the county attorney shall actively pursue obtaining a judgment in favor of the county for such fees, charges, and costs. The basic hourly rates for services rendered by county attorney's office attorneys and staff for which reimbursement is sought shall be established from time to time by resolution adopted by the board of county commissioners, after a public hearing. (Code 1979, § 2-365, Ord. No. 039-2004, § 1) Secs. 2-187-2-2-189. - Reserved. http://library.municode.comlprint.aspx?clientH)=14298&HTMReauest=htty%3 a%2f clo2fli... 9/30/2010 11/5/4 L� 3 ► Is 1 1 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, ESTABLISHING THE OFFICE OF COUNTY ATTORNEY; PROVIDING FOR THE QUALIFICATIONS AND DUTIES OF THE COUNTY ATTORNEY AND ASSISTANT COUNTY ATTORNEYS; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR INCORPORATION INTO THE MONROE COUNTY CODE OF ORDINANCES; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1. Chapter 2, Article XI, Sections 2-354 through 2-365, Monroe County Code are hereby created to read as follows: Sec. 2-354. Establishment of the County Attorney's Office. There is hereby established the Office of the County Attorney. The Office of the County Attorney shall be directly responsible to the Board of County Commissioners (the Board), and shall be independent of and not subject to the supervision or authority of the County Administrator. All prior actions of the Board relating to the Office of the County Attorney are hereby ratified and reaffirmed. Sec. 2-355. Minimum_._ Qualifications for AQ op intment as County Attorney. a) The County Attorney, at the time of appointment, shall have been a member in good standing of the Florida Bar for ten years or more immediately prior to appointment as County Attorney, with at least three years experience during those ten years, in local government law (county, municipal, special purpose district, or school district), environmental law, administrative law, labor and employment law, or any combination thereof. b) The County Attorney shall be appointed by an affirmative vote of not less than three members of the Board. c) The County Attorney need not be a resident of the County at time of appointment, but during tenure in the position shall be a full-time resident of the County. Sec. 2-356. Em llooyment Status of the County A orngy; Vacancy in Position. a) The County Attorney shall serve at the will and pleasure of the Board. b) The County Attorney is a direct employee of the Board, and responsible only to the Board. c) The County Attorney is not subject to the provisions of Chapter 69- 1321, Laws of Florida (the Monroe County Career Service Act), but must be employed pursuant to a written employment contract mutually agreed to by the County Attorney and the Board. The contract must, at a minimum, contain provisions for the following: 1) the term of the contract, which must be a minimum of four years; 2) the initial salary together with the basis for any increases in salary, travel allowance, and other benefits; 3) vacation leave and sick leave if different from that provided in the County Personnel Policies; and 4) termination of employment with or without cause; d) For purposes of the Florida Retirement System, Chapter 121, Florida Statutes, the position of County Attorney shall be designated and maintained as a Senior Management Service Class position consistent with the provisions of Section 121.055, Florida Statutes. e) The position of County Attorney shall be deemed vacant if the incumbent dies; is removed by action of the Board of county Commissioners; resigns; moves his or her residence from the County; or is unable to continue in office due illness or other casualty for a period of ninety (90) days or more. If the position becomes vacant, the Board shall designate an attorney to serve as Interim County Attorney until a successor has been duly appointed or employed. Sec. 2-357. Assistant County Attorneys. The County Attorney shall be responsible for overseeing and approving the selection, hiring, supervising, disciplining, and termination of all Assistant County Attorneys. Assistant County Attorneys who have successfully completed the probation period set forth in Monroe County Personnel Policies shall be career service employees under Chapter 69- 1321, Laws of Florida, or other applicable local, state, or federal ordinance or law. The number of Assistant County Attorneys to be employed to carry out the duties of the Office of County Attorney shall be as deemed necessary by the County Attorney, subject to the budgetary approval of the Board. Each Assistant County Attorney shall be a member in good standing of The Florida Bar and shall remain a member in good standing during the term of his or her employment. Sec. 2-358. Duties of the County Attorney. a) The County Attorney shall represent the Board as the Board's County Attorney, and either personally or through one or more Assistant County Attorneys or selected outside counsel: 1) Provide legal advice concerning County business to the Board when the Board is in public session and to individual Commissioners upon request or when the County Attorney deems it advisable to do so; 2) Provide legal advice concerning County business to the County Administrator, division directors and department heads when requested or when the County Attorney deems it advisable to do so, provided legal advice shall be furnished according to such procedures the County Attorney may deem necessary to assure the consistency and quality of advice provided; 3) Provide legal advice, when legally and ethically permitted, to the administrative and advisory commissions and committees established by the Board concerning the official duties and responsibilities of those commissions and committees; 4) Cause to be prosecuted and defended all causes of actions on behalf of the Board and County regardless of whether such action is legal, equitable or administrative in nature; or whether civil, criminal, or a violation of ordinance, to include litigation at both the trial and appellate levels, administrative hearings and appeals, mediation, and labor arbitration appeals in which the County, the Board, or a County department or agency under the jurisdiction of the Board is party; and including prosecution of Code Enforcement cases before the Code Enforcement Board, a Code Enforcement Special Magistrate, or in County court. 5) Provide for the defense of all current and former County officers and employees in their personal and official capacities, against any non -criminal action, regardless of whether the action is legal, equitable or administrative in nature, arising out of an act or acts, or omission or omissions, undertaken or omitted in the course of the officer's or employee's County duties or employment, when authorized to do so by the Board; 6) Review and, if authorized by law, object to payments to conflict counsel and expert witnesses in criminal cases, and the release of sureties from the obligations of bail bonds, to the extent that such review is the responsibility of the County by Florida general or special law. 7) Provide a report at each regular Board meeting listing on -going litigation and the nature thereof, together with other legal matters that the County Attorney deems advisable to bring to the attention of the Board. 8) Enter into agreements with the State Attorney and Public Defender relating to the prosecution and defense of county ordinance violations, and enter into agreements with municipalities relating to the prosecution of city ordinance violations. 9) Coordinate the preparation and codification of county ordinances and establish procedures, formats, and processes for initiating, revising, and finalizing proposed ordinances to be submitted to the Board of County Commissioners for adoption. 10) Attend all meetings of the Board of County Commissioners. 11) Perform such other lawful duties as the Board may direct or as may be provided for elsewhere in the Monroe County Code. b) The Office of the County Attorney may provide legal advice to other County constitutional officers but only to the extent that no conflict or potential conflict exists between the other constitutional officer and the Board with respect to the subject upon which the other constitutional officer seeks advice. c) The County Attorney and Assistant County Attorneys may not undertake the legal representation of private clients or provide legal advice to private clients, without regard to whether such representation or advice is provided in exchange for a fee or is provided on a pro bono basis. d) During the term of employment, the annual costs and fees assessed by The Florida Bar to maintain membership in good standing in The Florida Bar and the Local Government Section of The Florida Bar shall be paid by the County on behalf of the County Attorney and each Assistant County Attorney. Sec. 2-359. Emlloyment of Outside Counsel. When the County Attorney determines that the best interests of the County would be served by utilizing the expertise of outside counsel, the County Attorney shall request that the Board retain the outside counsel recommended by the County Attorney. If the Board concurs with the County Attorney's recommendation, then the Board shall retain the outside counsel through a standard engagement contract prepared by the County Attorney and approved by the Board. The engagement contract must contain, at a minimum, a description of the legal services to be provided and the fee, or basis of the fee, to be paid for such services. No fee may be paid to outside counsel without the review and approval of the County Attorney or the County Attorney's designee. Sec. 2-360. Office Management and Su000rt Staff. a) Personnel. The County Attorney shall be responsible for overseeing and approving the selection, hiring, supervising, disciplining, and termination of all staff and support personnel of the Office of County Attorney and shall employ such staff and support personnel that the County Attorney determines are needed to carry out the duties of the Office, subject to the budgetary approval of the Board. Staff and support personnel who have successfully served the probation period set forth in the Monroe County Personnel Policies shall be career service employees under Chap. 69-1321, Laws of Florida. b) Rules and Procedures. The County Attorney may establish such reasonable rules and procedures for the management of the County Attorney's Office and office personnel that the County Attorney deems necessary, provided that the rules and procedures do not conflict with Chap. 69-1321, Laws of Florida, or other applicable state or federal laws. c) Specialization. In order to encourage, promote, and maintain special expertise in local government law, the Board recognizes that The Florida Bar, under the aegis of the Florida Supreme Court, has adopted a special certification program for attorneys in City, County, and Local Government Law, and that it would be to the benefit of County government to have such specially certified attorneys in the County Attorney's Office. Accordingly, each County Attorney and Assistant County Attorney shall receive the sum of $250.00 per month for each month in which he or she obtains and maintains certification in City, County, and Local Government Law. Sec. 2-361. County Attorney to immediately defend all actions against the County. The County Attorney has the authority to immediately defend any action against the County without first seeking Board approval. The County Attorney shall advise the Board of the action at the next available Board meeting (subject to the notice requirements of Sec. 286.011(8), Florida Statutes, if a closed meeting is to be utilized). Sec. 2-362. Defense of Civil Actions against the County Attorney or Assistant County Attorney. a) The County shall provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of the County Attorney or any Assistant County Attorney arising out of and in the course and scope of his or her employment or function, unless, in the case of a tort action, the County Attorney or Assistant County Attorney acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Defense of such civil action includes, but is not limited to, any civil rights lawsuit seeking relief personally against the County Attorney or Assistant County Attorney for an act or omission under color of state law, custom, or usage, wherein it is alleged that such County Attorney or Assistant County Attorney has deprived another person of rights secured under the Federal Constitution or laws. Legal representation of the County Attorney or an Assistant County Attorney shall be provided by outside counsel selected by the County Administrator with the consent of the County Attorney. However, any attorney's fees paid from County funds on behalf of the County Attorney or Assistant County Attorney who is found to be personally liable by virtue of acting outside the scope of his or her employment or was acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, may be recovered by the County in a civil action against the County Attorney or Assistant County Attorney, as appropriate. b) Payments for any judgments and settlements arising out of an act or omission of the County Attorney or Assistant County Attorneys shall be made by the County pursuant to Sec. 111.071, Florida Statutes. c) The provisions of this Section shall be applicable to retired or former County Attorneys and Assistant County Attorneys, for the acts and omissions described in subsection 2-361(a) which occurred when such individuals were employed by the County. Sec. 2-363. Settlement of Claims and Litigation. The County Attorney shall have the authority to settle any claim against the County, and settle on behalf of the County any lawsuit in which the County is a party. Settlement authority may be exercised under the following conditions: a) By the County Attorney, in his or her judgment, when the settlement amount to be paid by the County does not exceed Fifteen Thousand Dollars ($15,000.00). b) By the County Attorney, with the written concurrence of the County Administrator, when the settlement amount to be paid by the County is in excess of Fifteen Thousand Dollars ($15,000.00) and does not exceed Twenty-five Thousand Dollars ($25,000.00). c) By the County Attorney, with prior approval of the Board lawfully authorized at a public meeting of the Board, where the settlement amount to be paid by the County Attorney is in excess of Twenty-five Thousand Dollars ($25,000.00). Sec. 2-364. Settlement of Code Enforcement And Other Liens. The County Attorney shall have the authority to compromise or settle any code enforcement lien or other lien imposed in favor of the County which has been imposed pursuant to law. Such settlement or compromise shall be upon such terms and conditions, and in such amount, as the County Attorney deems just and appropriate under the particular circumstances. If a settlement or compromise is agreed to by the person or entity legally obligated to pay the lien, the County Attorney may execute, on behalf of the County, any document that may be required for recording in the public records of Monroe County to satisfy or release the lien as imposed. If no agreement can be reached, the matter shall be placed by the County Attorney on the agenda of a scheduled public meeting of the Board of County Commissioners as an action item. Sec. 2-365. Recounment of Attorneys' Fees and Costs. In all proceedings in which the County may have the right under federal or Florida statutory or case law, or by contract, to seek reimbursement for attorney's fees, charges, or other costs incurred by the County Attorney's office personnel, the County Attorney shall actively pursue obtaining a judgment in favor of the County for such fees, charges, and costs. The basic hourly rates for services rendered by County Attorney's office attorneys and staff for which reimbursement is sought shall be established from time to time by resolution adopted by the Board of County Commissioners, after a public hearing. Section 2. Invalid Provision. If any section, subsection, sentence, clause or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity. Section 3. Repeal; Non -Revival. All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the extent of said conflict. The repeal of an ordinance herein shall not repeal the repealing clause of such ordinance or revive any ordinance which has been repealed thereby. Section 4. Effect of Repeal. This ordinance does not affect prosecutions for ordinance violations committed prior to the effective date of this ordinance; does not waive any fee or penalty due or unpaid on the effective date of this ordinance; and does not affect the validity of any bond or cash deposit posted, filed, or deposited pursuant to the requirements of any ordinance. Section 5. Ordinance Codified. 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 immediately upon receipt of official notice from the Office of the Secretary of State of the State of Florida that this ordinance has been filed with said Office. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the 15th day of December, 2004. Mayor Spehar yor Pro Tern McCoy �issioner Nelson Q*Mjssioner Neugent s st � • \ �" Mi loner Rice c f 1NY'L.KOLHAGE, Clerk By ... Deputy'Clerk Yes Yes Yes Yes Yes BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By .L L./1)) L4aa-0 Mayor/Chairperson Approved As To Form: 4" 7 hn R. Collins, County Attorney Date: It 1 Z3� BOARD OF COUNTY COMIVIISSIONERS AGENDA ITEM SUMMARY Meeting Date: 10/20/10 - KW Bulk Item: Yes X No Division: County Attorney Staff Contact: Suzanne Hutton, #3473 AGENDA ITEM WORDING: Approval to advertise a public hearing to consider an ordinance amending portions of ch. 2, Art. III, Div. 7, County Attorney, of the Monroe County Code to make it consistent with the changes to the Monroe County Personnel Policies and Procedures upon approval of the resolution. ITEM BACKGROUND: During the recent budget hearings, issues were raised about procedures for reclassification of positions/salary increases, auto allowances, particularly with regard to the County Attorney's Office. The Board directed staff to revisit some issues and Commissioner Wigington has requested changes to be made to the county attorney segment of the Monroe County Code to be consistent with the revised Personnel P&P. PREVIOUS RELEVANT BOCC ACTION: 12/21/2004 BOCC approved Ordinance 039-2004. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval to advertise to hold a public hearing on November 17, 2010 at 3:00 p.m. in Key Largo, FL TOTAL COST: N/A INDIRECT COST: BUDGETED: Yes No DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: N/A REVENUE PRODUCING: Yes x No SOURCE OF FUNDS: N/A AMOUNT PER MONTH Year APPROVED BY: County Atty ; _ .=r OMB/Purchasing Risk Management DOCUMENTATION: Included x Not Required DISPOSITION: AGENDA ITEM # Revised 2/05 Commissioner Wigington ORDINANCE NO. — 2010 AN ORDINANCE AMENDING MONROE COUNTY CODE SECTIONS 2-178, 2-179(b), 2-181(a) AND (b), 2-185; DELETING THOSE PROVISIONS WHICH CAN BE CONTAINED WITHIN THE CONTRACT WITH THE COUNTY ATTORNEY; PROVIDING FOR BOARD APPROVAL OF ANY NEW POSITIONS; PROVIDING FOR ALL OTHER PERSONNEL ACTIONS TO FOLLOW COUNTY POLICIES AND PROCEDURES; PROVIDING FOR BOARD APPROVAL AND WAIVERS OF CONFLICT FOR COUNTY ATTORNEY TO REPRESENT CONSTITUTIONAL OFFICER IN LITIGATION; PROVIDING FOR CLARIFICATION RE AUTHORITY TO SETTLE CODE ENFORCEMENT LIENS; PROVIDING FOR SEVERABILITY; 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, the Monroe County Code, Chapter 2, Division 5, governs the office of the county attorney; and WHEREAS, it is determined to be in the best interests of the public, particularly for the purpose of transparency as to administrative actions within the office of the county attorney, that provisions perceived by some to delegate too much discretion to the county attorney be revised to clarify when Board of County Commissioners (Board) approval is required for certain matters; NOW THEREFORE BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: SECTION 1. Section 2-178, Division 5, Monroe County Code, shall be revised to read: Sec. 2-178. Assistant county attorneys. The county attorney shall be responsible for overseeing and approving the selection, hiring, supervising, disciplining, and termination of all assistant county attorneys. Assistant county attorneys who have successfully completed the probation period set forth in the county personnel policies shall be career service employees under Laws of Fla. ch. 69-1321 or other applicable local, state, or federal ordinance or law. The budgetar-y approval of Each assistant county attorney shall be a member in good standing of the Florida Bar and shall remain a member in good standing during the term of his employment. SECTION 2. Section 2-179 (b), Monroe County Code, shall be revised to read: Sec. 2-179. Duties of the county attorney. (b) The office of the county attorney may provide legal advice to other county constitutional officers but only to the extent that no conflict or potential conflict exists between the other constitutional officer and the board with respect to the subject upon which the other constitutional officer seeks advice. Should the county attorney and the constitutional officer determine that the county attorney may represent the constitutional officer in litigation the county attorney shall obtain the permission of the board to represent the constitutional officer and obtain waivers as to any potential conflicts that may arise through the representation. SECTION 3. Section 2-181, subsections (a) and (b), Monroe County Code, shall be revised to read: Sec. 2-181. Office management and support staff. (a) Personnel. The county attorney shall be responsible for overseeing and approving the selection, hiring, supervising, disciplining, and termination of all staff and support personnel of the office of county attorney and shall employ such staff and support personnel that the county attorney determines are needed to carry out the duties of the office, subject to the budgetary approval of the board. Any new position for an attorney or support personnel shall be reviewed and approved by the board. All other personnel actions shall be in accordance with the county's personnel policies and procedures and increases due to reclassification, promotional opportunity merit and cost -of -living awards shall be subject to the same limitations as applicable to non -union employees under the county administrator. If a salary increase is less than the threshold for requiring_ board approval, the personnel action forms shall require review and approval of both the county administrator and the county attorney Staff attome3Ls and support personnel who have successfully served the probation period set forth in the county personnel policies shall be career service employees under Laws of Fla. ch. 69-1321. (b) Rules and procedures. The county attorney may establish such reasonable rules and procedures for the management of the county attorney's office and office personnel that the county attorney deems necessary, provided that the rules and procedures do not conflict with Laws of Fla. ch. 69-1321, or other applicable local, state., or federal laws. Any rules and procedures established for the county attorneys office that are inconsistent with any policies and procedures established by the board for county emplo eesin general shall be approved by the board SECTION 4. Section 2-185, Monroe County Code, shall be revised to read: Sec. 2-185. Settlement of code enforcement and other liens. The county attorney shall have the authority to compromise or settle any code enforcement lien or other lien imposed in favor of the county that has been imposed pursuant to law. Such settlement or compromise shall be upon such terms and conditions, and in such amount, as the county attorney deems just and appropriate under the particular circumstances, within guidelines set by the board. If a settlement or compromise is agreed to by the person or entity legally obligated to pay the lien, the county attorney may execute, on behalf of the county, any document that may be required for recording in the public records of the county to satisfy or release the lien as imposed. If no agreement can be reached, the matter shall be placed by the county attorney on the agenda of a scheduled public meeting of the board of county commissioners as an action item. SECTION 5. 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 6. 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 7. 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 8. EFFECTIVE DATE. This Ordinance shall take effect upon filing with the Department of State as provided in Section 125.66(2), Florida Statutes. Mayor Sylvia Murphy Mayor Pro Tern Heather Carruthers Commissioner Mario DiGennaro Commissioner George Neugent Commissioner Kim Wigington (SEAL) Attest: DANNY L. KOLHAGE, Clerk Deputy Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA :J Mayor/Chairperson A""1?10VED AST 9 � W. ADDITIONAL BACK-UP Municode Page 1 of 5 Monroe Counts FloridaS Code of Ordinances >> PART I - GENERAL ORDINANCES >> Chapter 2 - ADMINISTRATION >> ARTICLE Ill. OFFICERS AND EMPLOYEES >> DIVISION 5. - COUNTY ATTORNEY >> DIVISION 5. - COUNTY ATTORNEY Sec. 2-175. - Establishment of the count attorney' torney's,office. Sec. 2-176. -Min imum_e_ualifications forraapt ointment as_ —in attomey. Sec 2 177.- Employment status cfuthe coun attomey; vacancy in nnQiflnn. Sec 2 178 Assistant count+ attome s_ Sec 2-179. - Duties of the county attorney Sec. 2-180. - EmQloyment of outside counsel. Sec. 2-181.,-Office management and supgprt Staff., Sec 2-182. - County attorney_to immediately defend all actions atalnst the county. Sec 2 18.3, Defense of civil actions a ainsstt the ,coun _attome or assistant county attomey- Sec 2 184, - Settlement of claims and l tittat on. Sec 2 185. - Settlement of code. enforcement and other Ilene Sec 2 186. - Recou ment of attorneys' fees and costs, Secs. 2-187-2-2-189. - Reserved. Sec. 2-175. - Establishment of the county attorney's office. There is hereby established the office of the county attorney. The office of the county attorney shall be directly responsible to the board of county commissioners (the board), and shall be independent of and not subject to the supervision or authority of the county administrator. All prior actions of the board relating to the office of the county attorney are hereby ratified and reaffirmed. (Code 1979. § 2-354; Ord. No. 039-2004, § 1) Sec. 2-176. - Minimum qualifications for appointment as county attorney. (a) The county attorney, at the time of appointment, shall have been a member in good standing of the Florida Bar for ten years or more immediately prior to appointment as county attorney, with at least three years experience during those ten years, in local government law (county, municipal, special purpose district, or school district), environmental law, administrative law, labor and employment law, or any combination thereof. (b) The county attorney shall be appointed by an affirmative vote of not less than three members of the board. (c) The county attorney need not be a resident of the county at time of appointment, but during tenure in the position shall be a full-time resident of the county. (Code 1979, § 2-355; Ord. No. 039-2004, § 1) Sec. 2-177. - Employment status of the county attorney; vacancy in position. (a) The county attorney shall serve at the will and pleasure of the board. (b) The county attorney is a direct employee of the board, and responsible only to the board. (c) The county attorney is not subject to the provisions of Laws of Fla. ch. 69-1321 (the Monroe County Career Service Act), but must be employed pursuant to a written employment contract mutually agreed to by the county attorney and the board. The contract must, at a minimum, contain provisions for the following: (1) The term of the contract, that must be a minimum of four years; (2) The initial salary together with the basis for any increases in salary, travel allowance, and other benefits; (3) Vacation leave and sick leave if different from that provided in the county personnel policies; and http: //library.municode.com/print. aspx?clientID=14298&HTNMecluest=htty%3 a%2f%2fli... 9/30/2010 Municode Page 2 of 5 (4) Termination of employment with or without cause. (d) For purposes of the Florida Retirement System, F.S. ch. 121, the position of county attorney shall be designated and maintained as a senior management service class position consistent with the provisions of F.S. § 121.055. (e) The position of county attorney shall be deemed vacant if the incumbent: (1) Dies; (2) Is removed by action of the board of county commissioners; (3) Resigns; (4) Moves his residence from the county; or (5) Is unable to continue in office due to illness or other casualty for a period of 90 days or more. M If the position becomes vacant, the board shall designate an attorney to serve as interim county attorney until a successor has been duly appointed or employed. (Code 1979, § 2-356; Ord. No. 039-2004, § 1) Sec. 2-178. - Assistant county attorneys. The county attorney shall be responsible for overseeing and approving the selection, hiring, supervising, disciplining, and termination of all assistant county attorneys. Assistant county attorneys who have successfully completed the probation period set forth in the county personnel policies shall be career service employees under Laws of Fla. ch. 69-1321 or other applicable local, state, or federal ordinance or law. The number of assistant county attorneys to be employed to carry out the duties of the office of county attorney shall be as deemed necessary by the county attorney, subject to the budgetary approval of the board. Each assistant county attorney shall be a member in good standing of the Florida Bar and shall remain a member in good standing during the term of his employment. (Code 1979, § 2-357, Ord. No. 039-2004, § 1) Sec. 2-179. - Duties of the county attorney. (a) The county attorney shall represent the board as the board's county attorney, and either personally or through one or more assistant county attorneys or selected outside counsel: (1) Provide legal advice concerning county business to the board when the board is in public session and to individual commissioners upon request or when the county attorney deems it advisable to do so; (2) Provide legal advice concerning county business to the county administrator, division directors and department heads when requested or when the county attorney deems it advisable to do so, provided legal advice shall be furnished according to such procedures the county attorney may deem necessary to ensure the consistency and quality of advice provided; (3) Provide legal advice, when legally and ethically permitted, to the administrative and advisory commissions and committees established by the board concerning the official duties and responsibilities of those commissions and committees; (4) Cause to be prosecuted and defended all causes of actions on behalf of the board and county regardless of whether such action is legal, equitable or administrative in nature; or whether civil, criminal, or a violation of ordinance, to include litigation at both the trial and appellate levels, administrative hearings and appeals, mediation, and labor arbitration appeals in which the county, the board, or a county department or agency under the jurisdiction of the board is party; and including prosecution of code enforcement cases before the code enforcement board, a code enforcement special magistrate, or in county court; (5) Provide for the defense of all current and former county officers and employees in their personal and official capacities, against any noncriminal action, regardless of whether the action is legal, equitable or administrative in nature, arising out of an act, or omission, undertaken or omitted in the course of the officer's or employee's county duties or employment, when authorized to do so by the board; (6) Review and, if authorized by law, object to payments to conflict counsel and expert witnesses in criminal cases, and the release of sureties from the obligations of bail bonds, to the extent that such review is the responsibility of the county by state general or special law; (7) Provide a report at each regular board meeting listing ongoing litigation and the nature thereof, together with other legal matters that the county attorney deems advisable to bring to the attention of the board; (6) http://library.municode. con/print. aspx?clientlD=14298&HTMRequest=htty%3 a%2f%2fli... 9/30/2010 Municode Page 3 of 5 Enter into agreements with the state attorney and public defender relating to the prosecution and defense of county ordinance violations, and enter into agreements with municipalities relating to the prosecution of city ordinance violations; (9) Coordinate the preparation and codification of county ordinances and establish procedures, formats, and processes for initiating, revising, and finalizing proposed ordinances to be submitted to the board of county commissioners for adoption; (10) Attend all meetings of the board of county commissioners; and (11) Perform such other lawful duties as the board may direct or as may be provided for elsewhere in this Code. (b) The office of the county attorney may provide legal advice to other county constitutional officers but only to the extent that no conflict or potential conflict exists between the other constitutional officer and the board with respect to the subject upon which the other constitutional officer seeks advice. (c) The county attorney and assistant county attorneys may not undertake the legal representation of private clients or provide legal advice to private clients, without regard to whether such representation or advice is provided in exchange for a fee or is provided on a pro bono basis, unless the board of county commissioners grants an exception specific to the attorney on a case -by -case basis for the purpose of allowing the attorney to handle legal matters for family members, and only if the matter would not create a conflict of interest. If a particular matter requires attention prior to the next county commission meeting, the attorney may provide legal services to a family member only on matters that the county attorney deems not to be a conflict of interest with the legal interests of the county after receiving temporary approval of the request from the county mayor. The county attorney's office shall place an item on the agenda for the next commission meeting, regardless of whether the agenda deadline has passed, for consideration of the request by the board. (d) During the term of employment, the annual costs and fees assessed by the Florida Bar to maintain membership in good standing in the Florida Bar and the local government section of the Florida Bar shall be paid by the county on behalf of the county attorney and each assistant county attorney. (Code 1979, § 2-358, Ord. No. 039-2004, § 1; Ord. No. 009-2009, § 1) Sec. 2-180. - Employment of outside counsel. When the county attorney determines that the best interests of the county would be served by using the expertise of outside counsel, the county attorney shall request that the board retain the outside counsel recommended by the county attorney. If the board concurs with the county attorney's recommendation, then the board shall retain the outside counsel through a standard engagement contract prepared by the county attorney and approved by the board. The engagement contract must contain, at a minimum, a description of the legal services to be provided and the fee, or basis of the fee, to be paid for such services. No fee may be paid to outside counsel without the review and approval of the county attorney or the county attorney's designee. (Code 1979, § 2-359; Ord. No. 039-2004, § 1) Sec. 2-181. - Office management and support staff. (a) Personnel. The county attorney shall be responsible for overseeing and approving the selection, hiring, supervising, disciplining, and termination of all staff and support personnel of the office of county attorney and shall employ such staff and support personnel that the county attorney determines are needed to carry out the duties of the office, subject to the budgetary approval of the board. Staff and support personnel who have successfully served the probation period set forth in the county personnel policies shall be career service employees under Laws of Fla. ch. 69-1321. (b) Rules and procedures. The county attorney may establish such reasonable rules and procedures for the management of the county attorney's office and office personnel that the county attorney deems necessary, provided that the rules and procedures do not conflict with Laws of Fla. ch. 69-1321, or other applicable state or federal laws. (c) Specialization. In order to encourage, promote, and maintain special expertise in local government law, the board recognizes that The Florida Bar, under the aegis of the Florida Supreme Court, has adopted a special certification program for attorneys in city, county, and local government law, and that it would be to the benefit of county government to have such specially certified attorneys in the county attorney's office. Accordingly, each county attorney and assistant county attorney shall receive the sum of $250.00 per month for each month in which he obtains and maintains certification in city, county, and local government law. (Code 1979, § 2-360, Ord. No. 039-2004, § 1) http://library.municode.comlprint.aspx?clientlD=14298&HTMRequest=htty%3 a%2f%2fli... 9/30/2010 Municode Page 4 of 5 Sec. 2-182. - County attorney to immediately defend all actions against the county. The county attorney has the authority to immediately defend any action against the county without first seeking board approval. The county attorney shall advise the board of the action at the next available board meeting (subject to the notice requirements of F.S. § 286.011(8), R a closed meeting is to be used). (Code 1979, § 2-361; Ord. No. 039-2004, § 1) ISec. 2-183. - Defense of civil actions against the county attorney or assistant county attorney. (a) The county shall provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of the county attorney or any assistant county attorney arising out of and in the course and scope of his employment or function, unless, in the case of a tort action, the county attorney or assistant county attorney acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Defense of such civil action includes, but is not limited to, any civil rights lawsuit seeking relief personally against the county attorney or assistant county attorney for an act or omission under color of state law, custom, or usage, wherein it is alleged that such county attorney or assistant county attorney has deprived another person of rights secured under the Federal Constitution or laws. Legal representation of the county attorney or an assistant county attorney shall be provided by outside counsel selected by the county administrator with the consent of the county attorney. Any attorney's fees paid from county funds on behalf of the county attorney or assistant county attorney who is found to be personally liable by virtue of acting outside the scope of his employment or was acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, may be recovered by the county in a civil action against the county attorney or assistant county attorney, as appropriate. (b) Payments for any judgments and settlements arising out of an act or omission of the county attorney or assistant county attorneys shall be made by the county pursuant to F.S. § 111.071. (c) The provisions of this section shall be applicable to retired or former county attorneys and assistant county attorneys, for the acts and omissions described in subsection (a) of this section that occurred when such individuals were employed by the county. (Code 1979, § 2-362, Ord. No. 039-2004, § 1) State law reference —Defense of civil actions against public officers, employees or agents, F.S. § 111.07. Sec. 2-184. - Settlement of claims and litigation. The county attorney shall have the authority to settle any claim made by or against the county and settle on behalf of the county any lawsuit in which the county is a party. Settlement authority may be exercised under the following conditions: (1) By the county attorney, in his judgment, when the settlement value or amount to be paid or received by the county does not exceed $15,000.00; (2) By the county attorney, with the written concurrence of the county administrator, when the settlement value or amount to be paid or received by the county is in excess of $15,000.00 and does not exceed $25,000.00; and (3) By the county attorney, with prior approval of the board lawfully authorized at a public meeting of the board, where the settlement value or amount to be paid or received by the county is in excess of $25,000.00. (Code 1979, § 2-363, Ord. No. 039-2004, § 1; Ord. No. 026-2005, § p Sec. 2-185. - Settlement of code enforcement and other liens. The county attorney shall have the authority to compromise or settle any code enforcement lien or other lien imposed in favor of the county that has been imposed pursuant to law. Such settlement or compromise shall be upon such terms and conditions, and in such amount, as the county attorney deems just and appropriate under the particular circumstances. If a settlement or compromise is agreed to by the person or entity legally obligated to pay the lien, the county attorney may execute, on behalf of the county, any document http://library.municode.comlprint.aspx?clientID=14298&HTMReauest=httD%3a%2f°Io2fli___ 9/10/2010 Municode Page 5 of 5 that may be required for recording in the public records of the county to satisfy or release the lien as imposed. If no agreement can be reached, the matter shall be placed by the county attorney on the agenda of a scheduled public meeting of the board of county commissioners as an action item. (Code 1979, § 2-364, Ord. No. 039.2004, § 1) Sec. 2-186. - Recoupment of attorneys' fees and costs. In all proceedings in which the county may have the right under federal or state statutory or case law, or by contract, to seek reimbursement for attorney's fees, charges, or other costs incurred by the county attorney's office personnel, the county attorney shall actively pursue obtaining a judgment in favor of the county for such fees, charges, and costs. The basic hourly rates for services rendered by county attorney's office attorneys and staff for which reimbursement is sought shall be established from time to time by resolution adopted by the board of county commissioners, after a public hearing. (Code 1979, § 2-365, Ord. No. 039-2004, § 1) Secs. 2-187-2-2-189. - Reserved. http://library.municode.comlprint.aspx?clientH)=14298&HTMReauest=htty%3 a%2f clo2fli... 9/30/2010 11/5/4 L� 3 ► Is 1 1 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, ESTABLISHING THE OFFICE OF COUNTY ATTORNEY; PROVIDING FOR THE QUALIFICATIONS AND DUTIES OF THE COUNTY ATTORNEY AND ASSISTANT COUNTY ATTORNEYS; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR INCORPORATION INTO THE MONROE COUNTY CODE OF ORDINANCES; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1. Chapter 2, Article XI, Sections 2-354 through 2-365, Monroe County Code are hereby created to read as follows: Sec. 2-354. Establishment of the County Attorney's Office. There is hereby established the Office of the County Attorney. The Office of the County Attorney shall be directly responsible to the Board of County Commissioners (the Board), and shall be independent of and not subject to the supervision or authority of the County Administrator. All prior actions of the Board relating to the Office of the County Attorney are hereby ratified and reaffirmed. Sec. 2-355. Minimum_._ Qualifications for AQ op intment as County Attorney. a) The County Attorney, at the time of appointment, shall have been a member in good standing of the Florida Bar for ten years or more immediately prior to appointment as County Attorney, with at least three years experience during those ten years, in local government law (county, municipal, special purpose district, or school district), environmental law, administrative law, labor and employment law, or any combination thereof. b) The County Attorney shall be appointed by an affirmative vote of not less than three members of the Board. c) The County Attorney need not be a resident of the County at time of appointment, but during tenure in the position shall be a full-time resident of the County. Sec. 2-356. Em llooyment Status of the County A orngy; Vacancy in Position. a) The County Attorney shall serve at the will and pleasure of the Board. b) The County Attorney is a direct employee of the Board, and responsible only to the Board. c) The County Attorney is not subject to the provisions of Chapter 69- 1321, Laws of Florida (the Monroe County Career Service Act), but must be employed pursuant to a written employment contract mutually agreed to by the County Attorney and the Board. The contract must, at a minimum, contain provisions for the following: 1) the term of the contract, which must be a minimum of four years; 2) the initial salary together with the basis for any increases in salary, travel allowance, and other benefits; 3) vacation leave and sick leave if different from that provided in the County Personnel Policies; and 4) termination of employment with or without cause; d) For purposes of the Florida Retirement System, Chapter 121, Florida Statutes, the position of County Attorney shall be designated and maintained as a Senior Management Service Class position consistent with the provisions of Section 121.055, Florida Statutes. e) The position of County Attorney shall be deemed vacant if the incumbent dies; is removed by action of the Board of county Commissioners; resigns; moves his or her residence from the County; or is unable to continue in office due illness or other casualty for a period of ninety (90) days or more. If the position becomes vacant, the Board shall designate an attorney to serve as Interim County Attorney until a successor has been duly appointed or employed. Sec. 2-357. Assistant County Attorneys. The County Attorney shall be responsible for overseeing and approving the selection, hiring, supervising, disciplining, and termination of all Assistant County Attorneys. Assistant County Attorneys who have successfully completed the probation period set forth in Monroe County Personnel Policies shall be career service employees under Chapter 69- 1321, Laws of Florida, or other applicable local, state, or federal ordinance or law. The number of Assistant County Attorneys to be employed to carry out the duties of the Office of County Attorney shall be as deemed necessary by the County Attorney, subject to the budgetary approval of the Board. Each Assistant County Attorney shall be a member in good standing of The Florida Bar and shall remain a member in good standing during the term of his or her employment. Sec. 2-358. Duties of the County Attorney. a) The County Attorney shall represent the Board as the Board's County Attorney, and either personally or through one or more Assistant County Attorneys or selected outside counsel: 1) Provide legal advice concerning County business to the Board when the Board is in public session and to individual Commissioners upon request or when the County Attorney deems it advisable to do so; 2) Provide legal advice concerning County business to the County Administrator, division directors and department heads when requested or when the County Attorney deems it advisable to do so, provided legal advice shall be furnished according to such procedures the County Attorney may deem necessary to assure the consistency and quality of advice provided; 3) Provide legal advice, when legally and ethically permitted, to the administrative and advisory commissions and committees established by the Board concerning the official duties and responsibilities of those commissions and committees; 4) Cause to be prosecuted and defended all causes of actions on behalf of the Board and County regardless of whether such action is legal, equitable or administrative in nature; or whether civil, criminal, or a violation of ordinance, to include litigation at both the trial and appellate levels, administrative hearings and appeals, mediation, and labor arbitration appeals in which the County, the Board, or a County department or agency under the jurisdiction of the Board is party; and including prosecution of Code Enforcement cases before the Code Enforcement Board, a Code Enforcement Special Magistrate, or in County court. 5) Provide for the defense of all current and former County officers and employees in their personal and official capacities, against any non -criminal action, regardless of whether the action is legal, equitable or administrative in nature, arising out of an act or acts, or omission or omissions, undertaken or omitted in the course of the officer's or employee's County duties or employment, when authorized to do so by the Board; 6) Review and, if authorized by law, object to payments to conflict counsel and expert witnesses in criminal cases, and the release of sureties from the obligations of bail bonds, to the extent that such review is the responsibility of the County by Florida general or special law. 7) Provide a report at each regular Board meeting listing on -going litigation and the nature thereof, together with other legal matters that the County Attorney deems advisable to bring to the attention of the Board. 8) Enter into agreements with the State Attorney and Public Defender relating to the prosecution and defense of county ordinance violations, and enter into agreements with municipalities relating to the prosecution of city ordinance violations. 9) Coordinate the preparation and codification of county ordinances and establish procedures, formats, and processes for initiating, revising, and finalizing proposed ordinances to be submitted to the Board of County Commissioners for adoption. 10) Attend all meetings of the Board of County Commissioners. 11) Perform such other lawful duties as the Board may direct or as may be provided for elsewhere in the Monroe County Code. b) The Office of the County Attorney may provide legal advice to other County constitutional officers but only to the extent that no conflict or potential conflict exists between the other constitutional officer and the Board with respect to the subject upon which the other constitutional officer seeks advice. c) The County Attorney and Assistant County Attorneys may not undertake the legal representation of private clients or provide legal advice to private clients, without regard to whether such representation or advice is provided in exchange for a fee or is provided on a pro bono basis. d) During the term of employment, the annual costs and fees assessed by The Florida Bar to maintain membership in good standing in The Florida Bar and the Local Government Section of The Florida Bar shall be paid by the County on behalf of the County Attorney and each Assistant County Attorney. Sec. 2-359. Emlloyment of Outside Counsel. When the County Attorney determines that the best interests of the County would be served by utilizing the expertise of outside counsel, the County Attorney shall request that the Board retain the outside counsel recommended by the County Attorney. If the Board concurs with the County Attorney's recommendation, then the Board shall retain the outside counsel through a standard engagement contract prepared by the County Attorney and approved by the Board. The engagement contract must contain, at a minimum, a description of the legal services to be provided and the fee, or basis of the fee, to be paid for such services. No fee may be paid to outside counsel without the review and approval of the County Attorney or the County Attorney's designee. Sec. 2-360. Office Management and Su000rt Staff. a) Personnel. The County Attorney shall be responsible for overseeing and approving the selection, hiring, supervising, disciplining, and termination of all staff and support personnel of the Office of County Attorney and shall employ such staff and support personnel that the County Attorney determines are needed to carry out the duties of the Office, subject to the budgetary approval of the Board. Staff and support personnel who have successfully served the probation period set forth in the Monroe County Personnel Policies shall be career service employees under Chap. 69-1321, Laws of Florida. b) Rules and Procedures. The County Attorney may establish such reasonable rules and procedures for the management of the County Attorney's Office and office personnel that the County Attorney deems necessary, provided that the rules and procedures do not conflict with Chap. 69-1321, Laws of Florida, or other applicable state or federal laws. c) Specialization. In order to encourage, promote, and maintain special expertise in local government law, the Board recognizes that The Florida Bar, under the aegis of the Florida Supreme Court, has adopted a special certification program for attorneys in City, County, and Local Government Law, and that it would be to the benefit of County government to have such specially certified attorneys in the County Attorney's Office. Accordingly, each County Attorney and Assistant County Attorney shall receive the sum of $250.00 per month for each month in which he or she obtains and maintains certification in City, County, and Local Government Law. Sec. 2-361. County Attorney to immediately defend all actions against the County. The County Attorney has the authority to immediately defend any action against the County without first seeking Board approval. The County Attorney shall advise the Board of the action at the next available Board meeting (subject to the notice requirements of Sec. 286.011(8), Florida Statutes, if a closed meeting is to be utilized). Sec. 2-362. Defense of Civil Actions against the County Attorney or Assistant County Attorney. a) The County shall provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of the County Attorney or any Assistant County Attorney arising out of and in the course and scope of his or her employment or function, unless, in the case of a tort action, the County Attorney or Assistant County Attorney acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Defense of such civil action includes, but is not limited to, any civil rights lawsuit seeking relief personally against the County Attorney or Assistant County Attorney for an act or omission under color of state law, custom, or usage, wherein it is alleged that such County Attorney or Assistant County Attorney has deprived another person of rights secured under the Federal Constitution or laws. Legal representation of the County Attorney or an Assistant County Attorney shall be provided by outside counsel selected by the County Administrator with the consent of the County Attorney. However, any attorney's fees paid from County funds on behalf of the County Attorney or Assistant County Attorney who is found to be personally liable by virtue of acting outside the scope of his or her employment or was acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, may be recovered by the County in a civil action against the County Attorney or Assistant County Attorney, as appropriate. b) Payments for any judgments and settlements arising out of an act or omission of the County Attorney or Assistant County Attorneys shall be made by the County pursuant to Sec. 111.071, Florida Statutes. c) The provisions of this Section shall be applicable to retired or former County Attorneys and Assistant County Attorneys, for the acts and omissions described in subsection 2-361(a) which occurred when such individuals were employed by the County. Sec. 2-363. Settlement of Claims and Litigation. The County Attorney shall have the authority to settle any claim against the County, and settle on behalf of the County any lawsuit in which the County is a party. Settlement authority may be exercised under the following conditions: a) By the County Attorney, in his or her judgment, when the settlement amount to be paid by the County does not exceed Fifteen Thousand Dollars ($15,000.00). b) By the County Attorney, with the written concurrence of the County Administrator, when the settlement amount to be paid by the County is in excess of Fifteen Thousand Dollars ($15,000.00) and does not exceed Twenty-five Thousand Dollars ($25,000.00). c) By the County Attorney, with prior approval of the Board lawfully authorized at a public meeting of the Board, where the settlement amount to be paid by the County Attorney is in excess of Twenty-five Thousand Dollars ($25,000.00). Sec. 2-364. Settlement of Code Enforcement And Other Liens. The County Attorney shall have the authority to compromise or settle any code enforcement lien or other lien imposed in favor of the County which has been imposed pursuant to law. Such settlement or compromise shall be upon such terms and conditions, and in such amount, as the County Attorney deems just and appropriate under the particular circumstances. If a settlement or compromise is agreed to by the person or entity legally obligated to pay the lien, the County Attorney may execute, on behalf of the County, any document that may be required for recording in the public records of Monroe County to satisfy or release the lien as imposed. If no agreement can be reached, the matter shall be placed by the County Attorney on the agenda of a scheduled public meeting of the Board of County Commissioners as an action item. Sec. 2-365. Recounment of Attorneys' Fees and Costs. In all proceedings in which the County may have the right under federal or Florida statutory or case law, or by contract, to seek reimbursement for attorney's fees, charges, or other costs incurred by the County Attorney's office personnel, the County Attorney shall actively pursue obtaining a judgment in favor of the County for such fees, charges, and costs. The basic hourly rates for services rendered by County Attorney's office attorneys and staff for which reimbursement is sought shall be established from time to time by resolution adopted by the Board of County Commissioners, after a public hearing. Section 2. Invalid Provision. If any section, subsection, sentence, clause or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity. Section 3. Repeal; Non -Revival. All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the extent of said conflict. The repeal of an ordinance herein shall not repeal the repealing clause of such ordinance or revive any ordinance which has been repealed thereby. Section 4. Effect of Repeal. This ordinance does not affect prosecutions for ordinance violations committed prior to the effective date of this ordinance; does not waive any fee or penalty due or unpaid on the effective date of this ordinance; and does not affect the validity of any bond or cash deposit posted, filed, or deposited pursuant to the requirements of any ordinance. Section 5. Ordinance Codified. 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 immediately upon receipt of official notice from the Office of the Secretary of State of the State of Florida that this ordinance has been filed with said Office. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the 15th day of December, 2004. Mayor Spehar yor Pro Tern McCoy �issioner Nelson Q*Mjssioner Neugent s st � • \ �" Mi loner Rice c f 1NY'L.KOLHAGE, Clerk By ... Deputy'Clerk Yes Yes Yes Yes Yes BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By .L L./1)) L4aa-0 Mayor/Chairperson Approved As To Form: 4" 7 hn R. Collins, County Attorney Date: It 1 Z3� BOARD OF COUNTY COMAUSSIONERS AGENDA ITEM SUMMARY Meeting Date: 10/20/10 - KW Bulk Item: Yes X No Division: County Attomey Staff Contact: Bob Shillinger, #3470 AGENDA ITEM WORDING: Approval of a Resolution authorizing and consenting to the dual representation by the County Attorney's Office of both Monroe County Sheriff Robert Peryam and the Monroe County Commission in the matter of Edward Kite McIntyre, et al. v. Robert Peryam, et al., Case No. 80-1721-CV/WMH, before the U. S. District Court of the Southern District of Florida. ITEM BACKGROUND: Since 1980, Monroe County and the SheriTs Office have been co- defendants in the matter of Edward Kite McIntyre, et al. v Robert Peryam, et al. Case No. 80-1721- CV/W1-1M. The case was settled by a consent decree in 1991 which led, inter alia, to the construction of the Monroe County Detention Center on Stock Island and the closing of the Monroe County Jail on Whitehead Street in Key West. However, the Court maintained jurisdiction over the case to monitor compliance with the consent decree. On September 15, 2010, the Court ordered the County and the Sheriff to respond by November 15th to the Plaintiffs' complaints about alleged violations of the consent decree and scheduled a hearing on those complaints on January 28, 2011. Attorneys representing multiple clients in the same action are required by Rule 4-1.7 of the Rules of Professional Conduct to obtain the written consent of each client to the dual representation. Sheriff Peryam has already executed a dual representation letter. The County Code permits the County Attorney's Office to represent Constitutional Officers where there is no conflict of interest. In this case, there is a potential conflict between the positions of the Sheriff and the County Commission so this resolution is necessary. A potential conflict could conceivably arise if the remedies to any of the alleged violations require capital expenditures by the BOCC to retrofit the jail, versus operational changes in the manner in which the Sheriffis office operates the jail, which would come from the Sheriff's existing budget. This request is spurred by the recent passing of Mark Willis, the Sheriffis general counsel. The new General Counsel is new to the position and has only passing familiarity with the case. With new counsel involved, the dual representation by the County Attorney's Office would eliminate the potential need for the Sheriff to hire outside counsel at the expense of the taxpayer. PREVIOUS RELEVANT BOCC ACTION: 9/15/10 BOCC discussed the McIntyre jail case and authorized the County Attorney to represent the Sheriff's office unless there are any conflicting issues that would preclude them. The County Attorney advised she would bring a formal request for a waiver to the Board in October if there are not any conflicting issues. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECONE%IENDATIONS: Approval. TOTAL COST: N/A INDIRECT COST: est. @ $2,500 in staff time BUDGETED: Yes DIFFERENTIAL OF LOCAL PREFERENCE: n/a COST TO COUNTY: N/A SOURCE OF FUNDS: N/A REVENUE PRODUCING: Yes x No AMOUNT PER MONTH Year APPROVED BY: County Atty i )� OMB/Purchasing Risk Management DOCUMENTATION: Included x Not Required DISPOSITION: AGENDA ITEM # Revised 2/05 RESOLUTION NO. - 2010 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, AUTHORIZING AND CONSENTING TO THE DUAL REPRESENTATION BY THE COUNTY ATTORNEY'S OFFICE OF BOTH MONROE COUNTY SHERIFF ROBERT PERYAM AND THE MONROE COUNTY COMMISSION IN THE MATTER OF EDWARD KITE MCINTYRE, ET AL V. ROBERT PERYAM, ET AL, CASE NO. 80-1721-CV/WMH, BEFORE THE U.S. DISTRICT COURT OF THE SOUTHERN DISTRICT OF FLORIDA. WHEREAS, Monroe County and the Monroe County Sheriff have been co-defendants in the matter of Edward Kite McIntyre, et al. v. Robert Peryam, et al., Case No. 80-1721- CV/WHM, since 1980; and WHEREAS, the above -referenced case was settled by a consent decree in 1991 which led, inter alia, to the construction of the Monroe County Detention Center on Stock Island and the closing of the Monroe County Jail on Whitehead Street, in Key West; and WHEREAS, the Court has maintained jurisdiction over the case to monitor compliance with the consent decree; and WHEREAS, the Court has directed Monroe County and the Sheriff to respond by November 15, 2010 to a report filed by the Plaintiffs counsel, outlining concerns regarding compliance with that consent decree; and WHEREAS, the Sheriff was represented in this matter by his former General Counsel Mark Willis who unexpectedly passed away in August of this year; and WHEREAS, the tragic and untimely death of Mr. Willis has led the Sheriff to hire a new general counsel who had no prior familiarity with the case and who is not currently admitted to practice in the Southern District; and WHEREAS, the County Attorney's Office has been representing the County Commission in this case; and WHEREAS, the Sheriff has agreed to have the County Attorney's Office represent him as co -counsel along with his new General Counsel; and WHEREAS, although the Sheriff and the County Commission are separate and distinct entities under Art. VIII, Section 1 of the Florida Constitution, the interests of the Sheriff and Monroe County are aligned in the above -referenced case; and WHEREAS, Section 2-179(b) of the Monroe County Code only grants blanket authorization for the County Attorney's Office to represent Constitutional Officers such as the Sheriff in circumstances where no conflict of interest or potential conflict of interest exists thus requiring this waiver in light of the potential conflict referenced below; and WHEREAS, the County Attorney's Office has advised that the potential for a conflict of interest between the Sheriff's interests and those of Monroe County and its Commissioners, while minimal, may nevertheless exist or may arise in the future over the issue of whether the Monroe County Detention Center needs to be retrofitted or expanded in order to comply with the consent decree at issue in the litigation, an expense falling under the purview of the County Commission, or whether compliance can be gained through operational changes implemented by the Sheriffs office; and WHEREAS, Rule 4-1.7 of the Florida Bar's Rules of Professional Conduct permits dual representation of two clients in a matter where the representation does not involve the assertion of a position adverse to one of the clients in the matter; and WHEREAS, the Rule 4-1.7 of the Rules of Professional Conduct requires that consent to dual representation be memorialized in writing; and WHEREAS, the dual representation of both the Sheriff and the County Commission by the Monroe County Attorney's Office would eliminate the potential need for the Sheriff to retain outside counsel at the expense of the taxpayers; and NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA THAT: 1. The Board consents to the dual representation of the Sheriff and the County Commission by the County Attorney's Office in the matter of Edward Kite McIntyre, et al. v. Robert Peryam, et al., Case No. 80-1721-CV/WHM. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular meeting held on October 20, 2010. Mayor Sylvia Murphy Mayor Pro Tem Heather Carruthers Commissioner George Neugent Commissioner Mario Di Gennaro Commissioner Kim Wigington (Seal) ATTEST: DANNY L. KOLHAGE, CLERK um Deputy Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA Mayor Sylvia Murphy MUNKUL BOUNTY ATTORNEY 2 APPR D S T R BERT B.ASHILLINGEATTORNEY OR EY IUNTY MONROE KEY WEST FLORIDA 32040 (303)294-4641 Suzanne A. Hutton, County ,A,ttorney** Robert B. Sh' linger, Chief Assistant County Attomey ** Pedro J. Merc ado, Assistant County Attorney ** Susan M. Ciril nsley, Assistant County Attorney ** Natileene W. assel, Assistant County Attorney Cynthia L. Hill, Assistant County Attorney Christine Lioert-Barrows, Assistant County Attorney Derek V. Ho , ard, Assistant County Attorney Lisa Granger,j Assistant County Attorney ** Board Certihed in City, County & Local Govt. Law i i I BOARD OF COUNTY COMMISSIONERS Mayor Sylvia 3. Murphy, District 5 Mayor Pro -rem Heather Cam theis, District 3 Kim Wlgington, District 1. George Neugent, Dlsulct 2 Mario Di Gennaro, District 4 Office of the County Attorney 1111 12w Street, Suite 408 Key West, FL 33040 (305) 292-3470 — Phone (305) 292-3516 — Fax Authorization for Dual Representation by the Monroe County Attorney's Office 1, Robort Peryam, Sheriff of Monroe County, Florida, hereby authorize the Monroe County Attorney's Office to repres t me as co -counsel in the matter of Edward Kite.Mdntyre, et al. v.Robert .Peryam, et al., 80-172 1 - CVAV MH, in which I have been named as a party in my official capacity as Sheriff of Monroe County, Florida. I unden tand that the Monroe County Attorney's Office also represents Monroe County and the County Comir issioners, in their official capacities, another named party in the same action. I have been advised that the potent al for a conflict of interest between my interests and those of Monroe County and its Commissioners may exist may arise . the future. I have been advised that one such a potential conflict of interest includes whether the Mi inroe County Detention Center needs to be retrofitted or expanded in order to comply with the consent decree at issue in the litigation, an expense falling under the purview of the County Commission, or whether compl ance can get gained through operational changes by Sheriff's office. I have also been advised by my staff, includ ng my General Counsel, as well as the County Attorney's Office, that the risk of such a potential conflict actual#y arising is minimal. How4u, if such a conflict does arise, the County Attomey's office will advise me and my General Counsel in writi, explaining the nature of the conflict, before moving to withdraw. In the motion to withdraw, the County Atto y's office will ask the Court to allow me adequate time to seek new counsel of my own choosing. I further understand that if such a conflict does arise, that County Attorney's Office may attempt to continue to repres t Monroe County and the County Commissioners after withdrawing from representing me if not prohibited by the Rules of Professional Conduct or order of the Court. With t4is understanding, I consent to the dual representation by the County Attorney's office. I vie jo� Robert Peryam, Sheriff date Case 1:80-cv-01721-WMH Document 289 Entered on FLSD Docket 09/15/2010 Page 1 of 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 80-1721-CIV-HOEVELER EDWARD KITE MCINTYRE, et al., Plaintiffs, VS. ROBERT PERRYAM, et al., Defendants. AMENDED ORDER RESETTING DATE FOR DEFENDANTS TO RESPOND TO PLAINTIFFS' REPORT DATED JANUARY 28, 2010. AND RESETTING HEARING THIS CAUSE comes before the Court upon an unopposed request to continued the hearing presently set for October 6, 2010, and a request for a brief extension of time for submission of Defendants' response to Plaintiffs' Report due to a change in counsel for the Monroe County Sheriff's Office. For good cause shown, the Court hereby resets the following dates: Defendants shall have until Nov. 15, 2010, to file a response to the Report. Plaintiffs may file a reply to that response no later than Dec. 13, 2010. This Court will conduct an evidentiary hearing on the alleged violations of the Consent Decree at 11:00 a.m. on January 28, 2011. DONE AND ORDERED in Chambers in Miami this day of September 2010. AX-PI 402 � WILLIANfM. HOEVELER SENIOR UNITED STATES DISTRICT JUDGE Copies furnished: Kevin Robert Shirley, pro se Robert Michael Shepard, pro se Elio Dieguez Frias, pro se John Richard Perry, Jr., pro se Randall C. Berg Robert B. Shillinger, Jr. Case 1:80-cv-01721-WMH Document 283 Entered on FLSD Docket 01/28/2010 Page 1 of 15 UNITED STATES DISCTRICT COURT SOUTHERN DISTRICT OF FLORIDA Miami Division EDWARD KITE MCINTYRE, et. al., Plaintiffs, V. Case No. 80-172 1 -CIV-WMH ROBERT PERRYAM, et al., Defendants. PLAINTIFFS' REPORT ON THE RESULTS OF PLAINTIFFS' COUNSEL'S COMPLIANCE TOUR OF THE MONROE COUNTY DETENTION FACILITIES Plaintiffs, by and through undersigned counsel, hereby file this report in response to this Court's Order Granting Defendants' Motion For Protective Order (D.E. 281), requesting that Plaintiffs' Counsel report on the results of the planned inspection of the Monroe County deten- tion facilities and what further matters need to be addressed, and state: 1. On December 14-16, 2009, Plaintiffs' Counsel conducted a three-day, unan- nounced compliance tour of the Monroe County Detention Facilities in Key West, Marathon Key and Plantation Key, Florida (collectively "Jails"). Plaintiffs' counsel deeply appreciated the co- operation and courtesies extended them by the Sheriff's General Counsel and the Sheriff's staff. During the tour, Plaintiffs' Counsel met with and interviewed several inmates and members of the plaintiff Class at all three detention facilities, interviewed correctional officers, supervisory officials and medical personnel employed by Defendants or Defendants' contractors, and in- spected all areas of the Monroe County detention facilities covered by the 64-page Stipulation 107020827;1 } Case 1:80-cv-01721-WMH Document 283 Entered on FLSD Docket 01/28/2010 Page 2 of 15 and Agreement of Settlement filed on December 27, 1991 (hereinafter "Stipulation"), and after a fairness hearing was later entered as an Order of this Court in 1992. 2. As stated in Plaintiffs' Counsel's Response to Shepard's Petition to Enforce Con- sent Decree (D.E. 275), one critical provision of the Stipulation was that the old Monroe County Jail be closed, and a new Jail opened. See Stipulation at ¶¶ 166-7. While this provision of the Stipulation has been upheld, Plaintiffs' Counsel's recent compliance tour of the new Main Jail facility on Stock Island (hereinafter "Main Jail"), as well as Plaintiffs' Counsel's inspection of the detention centers on Marathon Key and Plantation Key, revealed several violations of the Stipulation in nearly all areas of its purview. As requested by this Court in its Order Granting Motion for Protective Order (D.E. 281), these violations are outlined below. Violations of the Stipulation and Court Order 3. Pursuant to Paragraph 32 of the Stipulation, Defendants are to institute a sanita- tion and maintenance program. While the Jails appeared clean and well maintained at the time of the tour, there were admissions by Defendants of several MRSA (Methicillin-resistant Staphy- lococcus aureus) cases occurring over the past several years, which can be caused in part by a lax sanitation program. In a confined environment, such as a jail, with continual admission of new members, who may typically be in poor health and have poor hygiene practices, there will con- tinue to be a number of challenges for staff. In response to nationwide reports on MRSA infec- tions among incarcerated and recently incarcerated persons, the Federal Bureau of Prisons has released guidelines for the management and control of the MRSA infection. Defendants are en- couraged to aggressively follow these guidelines and maintain a sanitation and maintenance pro- gram so no MRSA cases reoccur and, if they do reoccur, those with MRSA are isolated and kept out of general population. {07020827;1 } 07020714.2 2 Case 1:80-cv-01721-WMH Document 283 Entered on FLSD Docket 01/28/2010 Page 3 of 15 4. Pursuant to Paragraphs 36 and 37 of the Stipulation, Defendants recognize that a proper classification system is essential to minimize the risk of harm to both inmates and offic- ers. Plaintiffs' Counsel's recent compliance tour of the Main Jail, however, reveals that Defen- dants' inmate classification system and method of housing certain custody levels is subject to question. For example, inmates classified as "protective custody"' are housed in a restrictive, administrative segregation housing unit called Unit Alpha, where they are given only one (1) hour, three (3) times per week, for both outdoor exercise and showering. These "protective cus- tody" inmates have no access to any educational or vocational programming, despite having demonstrated no risk of harm to any other inmate or staff member. While in their cells, they have no access to periodicals, newspapers, television, or other reading materials. Other inmates housed in the same restrictive housing unit are classified as "high profile" inmates. This classifi- cation identifier — "high profile" -- is not defined in any of the Main Jail's operating materials or in the Inmate Handbook, and appears to be reserved for those inmates that demand the officers' most constant attention, while locked in solitary confinement. Housing protective custody in- mates in what amounts to solitary confinement under the same conditions as "high profile" in- mates is an improper classification and housing decision. 5. Pursuant to Paragraph 37 of the Stipulation, "any inmate who is identified as at risk for suicide shall not be housed in a single occupancy cell unless the inmate is observed by direct visual observation twenty-four (24) hours each day." Plaintiffs' Counsel's recent com- pliance tour of the Main Jail, however, reveals that this vital suicide prevention procedure is not being followed. Instead, Plaintiffs' Counsel observed inmates, who had been determined by mental health staff at the Main Jail to be at risk for suicide and stripped of all clothing, bedding, personal belongings, and other potential instrumentalities for suicide, housed in the same restric- "Protective custody" inmates are those unable to live in general population due the nature of crime, their prior oc- {07020827;1 } 07020714.2 3 Case 1:80-cv-01721-WMH Document 283 Entered on FLSD Docket 01/28/2010 Page 4 of 15 tive housing unit as the protective custody and "high -profile" inmates discussed above, and ob- served only by the singular officer also responsible for the care and management all the other inmates in that housing unit. 6. Pursuant to Paragraph 46 of the Stipulation, when a juvenile has been transferred for prosecution as an adult by direct file, waiver, or grand jury indictment or is wanted by anoth- er jurisdiction for prosecution as an adult, the juvenile shall be housed in the Main Jail separately from adult inmates. The Stipulation defines this separation as "sight and sound" separation be- tween incarcerated adults and any juveniles who might be housed in the Main Jail. See Id. While there were not any juveniles currently incarcerated at the Main Jail during Plaintiffs' Counsel's recent compliance tour, correctional staff at the Main Jail were unable to identify any area in the Main Jail in which a juvenile could be housed and which would prohibit the incarce- rated juvenile from having any sight and sound contact with any incarcerated adults or trustees. 7. Pursuant to Paragraph 61 of the Stipulation, "each inmate in administrative con- finement shall receive housing, food, clothing, medical care, exercise, visitation, showers and other services and privileges comparable to those available to the general population." As stated above, however, inmates in the Main Jail who are placed in administrative confinement — such as those classified as "protective custody" — are treated as, and given the same privileges as, the most dangerous and severely punished inmates ("high profile") in the Main Jail. Instead of re- ceiving housing, food, clothing, medical care, exercise, visitation, showers, and other services comparable to those available to the general population, these inmates are kept in single - occupancy cells for twenty-three (23) to twenty-four (24) hours per day, receive only one (1) hour per day, three (3) times per week, for both outdoor recreation and the opportunity to shower, are given the opportunity to make one (1) phone call per day, provided no reading ma- {07020827;1 } 07020714.2 4 Case 1:80-cv-01721-WMH Document 283 Entered on FLSD Docket 01/28/2010 Page 5 of 15 terial, and have absolutely no access to any educational, vocational, drug or alcohol program- 2 ming. 8. Pursuant to Paragraph 66 of the Stipulation, Defendants shall provide for the needs of handicapped inmates. While the Main Jail did contain at least one housing area and bathroom area, which complied with Florida and Federal law, Defendants have failed to ensure that handicapped inmates at the Main Jail have equal access to all services and programs offered to the general population. Certain educational and vocational programs, which are offered for inmates in the general population, for instance, are only offered in areas of the Main Jail, which must be accessed via stairs. By limiting access to these services and programs to only those in- mates who are physically capable to attend, Defendants fail to reasonably accommodate the needs of its handicapped inmates. Additionally, according to one inmate, the hand railing used to assist disabled inmates shower in the female showers was broken. 9. Pursuant to Paragraph 68 of the Stipulation, all inmates shall have the opportunity to have a minimum of two (2) hours of outdoor exercise three (3) times per week. Plaintiffs' Counsel's recent compliance tour of the Main Jail, however, reveals that even this bare minimum of outdoor recreational time is consistently not being met. As discussed above, many inmates housed in restrictive housing unit Alpha in the Main Jail are instead being given only one (1) hour of outdoor exercise three (3) times per week. Because this time must also be used to shower and use the telephone, the time allowed solely for outdoor exercise is even less. In the event of inclement weather, the Main Jail makes no effort to make-up the lost exercise period, as further required by the Stipulation. See Id. 10. At the Plantation Key Jail, the alleged outdoor recreation area is not outdoors. In- stead, the area has walls on all sides and at the top of the southern wall there is a space, approx- Inmates who are Pro Se litigants and certain others have access to the law library for varying periods of time. {07020827;1 } 07020714.2 5 Case 1:80-cv-01721-WMH Document 283 Entered on FLSD Docket 01/28/2010 Page 6 of 15 imately one foot tall, which is exposed and covered by chain -links, amounting to no more than a cracked window. Therefore, Defendants are violating Paragraph 68 of the Stipulation by not providing the inmates at Plantation Key Jail with outdoor recreation. 11. Pursuant to Paragraph 69 of the Stipulation, two (2) full-time recreational officers shall be employed at the Main Jail to organize and implement the exercise program. As revealed during Plaintiffs' Counsel's recent compliance tour of the Main Jail, however, Defendants do not currently employ, nor have they apparently ever employed, any full-time recreational officers to organize and implement an inmate exercise program as required by the Stipulation. 12. Pursuant to Paragraph 70 of the Stipulation, exercise equipment such as "pull-up bars, dip bars, and sit-up incline benches" should be added to the exercise areas at the Main Jail, as well as the Plantation Key and Marathon Key Jails. While the large recreational yard in the Main Jail does contain such equipment, the majority of inmates confined in one of the three Mo- nroe County Detention Centers have never seen such equipment introduced. Inmates confined in the restrictive housing unit in the Main Jail discussed above, along with Special Needs inmates confined in the Main Jail, share an outdoor exercise area with one (1) basketball hoop, but no pull-up bars, dip bars, or sit-up incline benches, and no basketball ball was seen. Inmates at the Marathon Key Jail share a single outdoor exercise area which contains no exercise equipment whatsoever — no basketball goal, no exercise bars of any kind, and no athletic equipment or bas- ketball — and are further subject to disciplinary action if they are found to be using their beds or storage lockers as replacements for the pieces of exercise equipment which are supposed to be provided. Inmates at the Plantation Key Jail enjoy a similar experience — a single, covered exer- cise area, which provides limited sunlight, and contains no exercise equipment of any kind. Pur- suant to Paragraph 71 of the Stipulation, Defendants shall obtain at least an annual inspection of {07020827;1 } 07020714.2 6 Case 1:80-cv-01721-WMH Document 283 Entered on FLSD Docket 01/28/2010 Page 7 of 15 all jail facilities by the State Fire Marshal. In violation of this provision of the Stipulation, as of December 15, 2009, according to files maintained by Defendants, the most recent inspection of the Main Jail by the State Fire Marshal was December 2, 2008, and therefore out of date. 13. Pursuant to Paragraph 83 of the Stipulation, Defendants are charged with hiring a dietician/nutritionist to supervise menu planning to ensure the diet is adequate and varied. As set forth below in paragraph 14, the food fed the inmates at Plantation Key Jail is not varied for breakfast and lunch, and was quite frankly disgusting in its quality. 14. Pursuant to Paragraph 85 of the Stipulation, foods intended to be served hot to the inmates shall be served hot. According to correctional staff at the Plantation Key Jail, inmates at the facility are meant to receive two cold meals and one hot meal per day, however the food is transported to the facility from the Marathon Key Jail nearly forty (40) miles away, and the one hot meal often arrives cold or lukewarm. For breakfast, the inmates receive eggs that often are so cold that they are encrusted in ice, for lunch they often receive the same cold deli meat sand- wiches every day, and the only drink they are provided is a lemon flavored drink that the inmates refer to as "bug juice." 15. The majority of inmate complaints and letters over the past year have concerned the poor quality of the food, including allegations of uncooked and unsanitary food, turkeys sto- len which were purchased to be served the inmates for Thanksgiving dinner, etc. Overall food quality since the last time Plaintiffs' Counsel toured has decreased substantially. Food service is now handled by an outside private contractor, and the contract is in the process of being rebid. Defendants should give serious consideration to either selecting a different vendor, requiring a far better quality from the selected vendor, or taking over food service altogether and handling it {07020827;1 } 07020714.2 7 Case 1:80-cv-01721-WMH Document 283 Entered on FLSD Docket 01/28/2010 Page 8 of 15 in-house. While balancing fiscal constraints and food quality is difficult, and no one expects gourmet food be served in a jail, the food quality presently served is far less than satisfactory. 16. Pursuant to Paragraph 89 of the Stipulation, special diets shall be made available to accommodate inmates with legitimate religious or medical requirements. During Plaintiffs' Counsel's recent compliance tour of the Main Jail, however, Plaintiffs' Counsel spoke with sev- eral inmates who complained that their requests for a special diet to accommodate a legitimate religious need had not been met. As discussed more fully below, these complaints do not come as a surprise to Plaintiffs' Counsel given the fact that Defendants have failed to employ a Chap- lain, in any sort of full- or part-time capacity, in several years, and instead rely on an otherwise employed correctional officer to make religious determinations. 17. Pursuant to Paragraph 100 of the Stipulation, Defendants shall make maximum use of community resources to provide academic and vocational educational courses to "all in- mates of all educational and intellectual levels." As discussed more fully above, however, many inmates in the Main Jail are precluded from accessing such academic and vocational educational courses for no legitimate penological reason. Inmates in protective custody or other forms of administrative confinement, for example, who are required by the Stipulation to be provided equal access to exactly such types of programs and services, are instead locked in isolation twen- ty-three (23) to twenty-four (24) hours a day, while wheelchair -bound inmates are unable to access these courses which are inexplicably held in second -floor rooms. 18. Pursuant to Paragraph 101 of the Stipulation, Defendants agreed to continue their practice of appointing a Chaplain at the Main Jail and cooperating with members of the clergy in providing religious programs. As revealed during Plaintiffs' Counsel's recent compliance tour, however, Defendants have failed to employ a religious Chaplain, in any sort of full- or part-time {07020827;1 } 07020714.2 8 Case 1:80-cv-01721-WMH Document 283 Entered on FLSD Docket 01/28/2010 Page 9 of 15 capacity, in several years, and instead rely on an otherwise employed correctional officer to make religious determinations. As a result, Plaintiffs' Counsel interviewed several inmates who voiced complaints regarding discrimination and unequal access to religious programming. The Stipulation further requires Defendants to make available to the inmates a list of qualified mem- bers of the clergy or lay persons who have expressed an interest in ministering to the needs of inmates. See Id. However, no such list exists or has been made available to the inmates. 19. Pursuant to Paragraph 106 of the Stipulation, inmates shall be provided access to a free telephone line to call their public defender, court -appointed criminal defense attorney, and Pretrial Services. In the Main Jail's restrictive housing unit, however, inmates are allowed to make only one (1) phone call per day to their public defender, court -appointed criminal defense attorney, or Pretrial Services. If their attorney does not answer the phone, that inmate has used their one (1) phone call for the day. This restriction on these inmates' telephone privileges con- stitutes an unnecessary and unconstitutional restriction on these individuals' rights of access to the courts, and is a clear violation of the Stipulation. Complaints were also received that inmate calls to counsel were limited to five (5) minutes. As a practical matter, allowing inmates to have more frequent and longer contact with their criminal defense attorneys or public defender could result in the inmate bonding out sooner or pleading guilty and moving on to the state prison sys- tem, thereby freeing up valuable jail space which could ultimately save the Defendants money. Plaintiffs' counsel also received complaints about the costs of telephone calls to persons in the free world$18.00 for a fifteen (15) minute call. This charge is exorbitant. The ability of an inmate to maintain communication with family, friends, religious leaders, and employers is es- sential to the inmate being successful on re-entry. Infringing on an inmate's ability to communi- {07020827;1 } 07020714.2 9 Case 1:80-cv-01721-WMH Document 283 Entered on FLSD Docket 01/28/2010 Page 10 of 15 cate by phone will almost certainly harm re-entry chances and increase the likelihood of recidiv- ism. 20. Pursuant to Paragraphs 106-116 of the Stipulation, the Defendants are to provide inmates with greater access to the courts, and there is great specificity as to how this is to be ac- complished. Defendants have eliminated the law library, which was previously required and in- stead installed four (4) computer terminals with access to the correctional version of Westlaw. The move to Westlaw is commendable. However, over the past several months there have been complaints about some of the terminals not working, thereby limiting the amount of access time to conduct research. During this tour, all four terminals were operational. However, there is no way for the inmate to print out cases for reference after an inmate returns to their cell. Hereto- fore, when the law library consisted of books as opposed to Westlaw, the inmates could photo- copy decisions for future reference. Allowing inmates to print particularly relevant cases using Westlaw should be explored and implemented given the few number of terminals, which exist for such a large jail population. Alternatively, the Main Jail may need to have a larger number of computer terminals to provide greater access. 21. Pursuant to Paragraph 114 of the Stipulation, pro se indigent inmates shall be provided with "a reasonable quantity of pens, paper, and legal mail postage by the Sheriff." The Sheriff has imposed a S 15.00 per month limit on inmates, and several inmates expressed that this limit is unreasonable, particularly with the recent increases in postage costs. This limitation should be revisited, and if deemed "unreasonable" by this Court, it should be increased. 22. Pursuant to Paragraph 120 of the Stipulation, all inmates shall be provided with two (2) towels. Defendants have now changed to a system, however, wherein inmates are only provided with one (1) towel, and may only keep that towel for the period of time in which they {07020827;1 } 07020714.2 10 Case 1:80-cv-01721-WMH Document 283 Entered on FLSD Docket 01/28/2010 Page 11 of 15 are allowed to shower. Plaintiffs' Counsel further interviewed several inmates who indicated that correctional staff often refuses to provide inmates with any towels, regardless of their classi- fication, forcing inmates to dry off after showers with paper towels or with their own dirty clothes. 23. Pursuant to Paragraph 142, copies of an "inmate's medical records shall be sent to the Florida Department of Corrections or other correctional facility upon transfer." Defendants' medical contractor, Prison Health Services, Inc., indicated that it is not complying with this pro- vision of the Stipulation. 24. Pursuant to Paragraph 149 of the Stipulation, improved access to mental health care for all inmates in Monroe County shall be undertaken immediately. Plaintiffs' Counsel's recent compliance tour of the Main Jail, however, reveals serious concerns regarding the ability of inmates at the Main Jail to access mental health services. While the Main Jail employs a psy- chiatrist, who is supposed to be at the Jail for eight (8) hours per week, the Stipulation requires that the Defendants "increase the psychiatrist's hours to ensure he meets the demand for his ser- vices and the responsibilities of the position." See Id. Given the apparent large number of in- mates in the Main Jail currently taking psychotropic medications or with a history of mental ill- ness), it is clear that the psychiatrist's current hours do not meet the inmates' demands for his services. During Plaintiffs' Counsel's visit, for instance, the psychiatrist was unable/unwilling to see a severely mentally ill inmate, who was on suicide watch and locked in isolation, and who had not seen the psychiatrist in nearly a week. 25. Plaintiffs' Counsel's recent compliance tour further revealed several violations of the Stipulation as it relates to the protection of suicidal inmates. Pursuant to Paragraph 149 of the Stipulation, the Jail physician, the psychiatrist, or the psychologist must evaluate all suicidal {07020827;1 } 07020714.2 11 Case 1:80-cv-01721-WMH Document 283 Entered on FLSD Docket 01/28/2010 Page 12 of 15 inmates within twenty-four (24) hours. No inmate who is placed on a suicide watch shall be re- moved from such a watch except upon the direction of a licensed physician or a psychologist. See Id. According to the Main Jail's Health Services Administrator, however, suicidal inmates, even those placed on twenty-four (24) hour, direct supervision, are not necessarily ever seen by the jail physician, psychiatrist, or the psychologist, as required by the Stipulation. Instead, sui- cidal inmates are supervised by the Jail's nursing staff, which, in direct contravention of the Sti- pulation, has the authority to discharge an inmate from suicide watch without the approval of a licensed physician or psychologist. 26. Pursuant to Paragraph 159 of the Stipulation, delays in the provision of prescrip- tion medication shall be eliminated. Plaintiffs' Counsel's recent compliance tour of the Main Jail revealed that during the booking, all prescription medications found on the inmates are seized. According to Main Jail medical staff, there is a significant delay between the time in- mates are brought into the Main Jail, and when they are provided with prescription medications. Before replacement medications are provided, absent a medical emergency, inmates must first see the nurse, and depending on the day and time of the inmate's arrival at the Main Jail, days can pass before this happens; once an inmate sees the nurse, the nurse has to evaluate the inmate and make a recommendation to the doctor; once the doctor approves, the medication needs to be ordered and shipped from Tennessee. This procedure presents particularly troubling delays for asthmatic inmates, and other inmates, who rely on emergency/rescue medications. Asthmatic inmates, stripped of their rescue inhalers at intake, must wait until their condition rises to medi- cal emergency before they are administered treatment. Thus, the aforementioned procedures and practices violate Paragraph 159 of the Stipulation, as they cause delays in the provision of pre- scription medication. {07020827;1 } 07020714.2 12 Case 1:80-cv-01721-WMH Document 283 Entered on FLSD Docket 01/28/2010 Page 13 of 15 27. Although not covered in the Stipulation since it was not the policy at the time this case settled, Defendant Sheriff currently refuses to allow inmates to have a subscription to a dai- ly newspaper. Such a policy violates the Plaintiffs' First and Fourteenth Amendment rights. It is well established that the First Amendment protects the right to disseminate as well as "receive information and ideas." Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). The right survives in- carceration and extends to both prisoners and "free citizens... reaching out to those on the `in- side."' Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). And, "there is no question that pub- lishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners." Id. at 408. See, Green v. Ferrell, 801 F.2d 765, 772 (5th Cir. 1986); Mann v. Smith, 796 F.2d 79, 82-83 (5th Cir. 1986) (ban on all newspapers and magazines violated First Amendment); Hutchings v. Co - rum, 501 F.Supp. 1276, 1299 (W.D.Mo. 1980); Mitchell v. Untreiner, 421 F. Supp. 886, 895 (N.D.Fla. 1976); Manicone v. Corso, 365 F. Supp. 576, 577 (E.D.N.Y. 1973); Powlowski v. Wul- lich, 81 Misc.2d 895, 366 N.Y.S.2d 584, 590 (N.Y.Sup. 1975); see Van' Cleave v. U.S., 854 F.2d 82, 84 (5th Cir. 1988) (ban on newspapers stated a constitutional claim); Martin v. Tyson, 845 F.2d 1451, 1454 (5th Cir. 1988) (ban on newspapers raised a triable issue). Kincaid v. Rusk, 670 F.2d 737, 743-45 (7th Cir. 1982); Miller v. Carson, 401 F. Supp. 835 (M.D. Fla. 1975), aff'd, 563 F.2d 741 (5th Cir. 1977). 28. Lastly, Plaintiffs' Class Counsel has not applied for their attorneys' fees since the entry of the Stipulation as an Order of the Court. Plaintiffs' Counsel reserves the right to move for their attorneys' fees. {07020827;1 } 07020714.2 13 Case 1:80-cv-01721-WMH Document 283 Entered on FLSD Docket 01/28/2010 Page 14 of 15 Respectfully submitted, s/Randall C. Berg, Jr. Randall C. Berg, Jr., Esq. Fla. Bar No. 0318371 Joshua A. Glickman, Esq. Florida Bar No. 43994 Shawn A. Heller, Esq. Florida Bar No. 46346 Florida Justice Institute, Inc. 100 SE 2nd Street 3750 Miami Tower Miami, FL 33131-2113 Attorneys for the Plaintiffs Certificate of Service I hereby certify that a copy of the foregoing was electronically filed via the Court's CM/ECF system and a copy sent to all attorneys of record on the attached service list, and a hard copy sent via First Class U.S. mail to the inmates listed on the attached service list. s/Randall C. Berg, Jr. Randall C. Berg, Jr., Esq. {07020827;1 } 07020714.2 14 Case 1:80-cv-01721-WMH Document 283 Entered on FLSD Docket 01/28/2010 Page 15 of 15 Service List By CM/ECF: Marls Willis, Esq. Jonathan G. Ellsworth, Esq. Monroe County Sheriffs Office 5525 College Road Key West, FL 33040 Attorneys for the MCSO Defendants Robert B. Shillinger, Esq. Chief Assistant County Attorney Monroe County Attorneys' Office 1111 121h Street, Suite 408 Key West, Florida 33040 Attorneys for Monroe County By First Class U.S. Mail: Inmate Kevin R. Shirley Monroe County Detention Center 5501 College Road Key West, FL 33040 Inmate Robert Michael Shepard Monroe County Detention Center 5501 College Road Key West, FL 33040 {07020827;1 } 07020714.2 15 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA EDWARD KITE MCINTYRE, et al., ) Plaintiffs, } VS. ) ) RICHARD ROTH, et al., } ) Defendants. ) SECTION I RECEIVED MAR 21 2005 MONROE COUNTY ATTORNEY Case No. 80-1721-CIV-WMH STIPULATION AND AGREEMENT OF SETTLEMENT CONTENTS SUBMISSION TO THE COURT OF PROPOSED SETTLEMENT AND USE OF BEST EFFORTS TO OBTAIN APPROVAL AND ENTRY OF JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . 4 SECTION II SETTLEMENT CLASS . . . . . . . . . . . . . . . . . . . . 4 SECTION III NOTICE TO CLASS MEMBERS . . . . . . . . . . . . . . . . 5 SECTION IV INTENT . . . . . . . . . . . . . . . . . . . . . . . . . 6 SECTION V ;,ENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . 7 U ECG': ON VI OPT -RATING REQUIREMENTS . . . . . . . . . . . . . . . . . 3 '�. -apacity and Housing . . . . . . . . . . . ., -improvements and Restrictions on Inmate housing t ,was C. Improvements to the Physical Plant of the Main Jail . . . . . . 12 D. sanitation, Maintenance and Repairs . . . . . . F. Classification . . . . . . . . . . . . . . . . . . 14 t Juveniles . . . . . . . . . . . . . . . . . . . . . 17 Discipline and Order . . . . . . . . . . . . . . . . 21 H. Myers Act Persons . . . . . . . . . . . . . . . . 26 I. Act Persons . . . . . . . 27 J. Handicapped Accessibility . . . . . . . . . . . . 27 K. Exercise . . . . . . . . . . . . . . . . . . . . . . 23 L. Fire Safety . . . . . . . . . . . . . . . . . . . . 28 M. Food Service . . . . . . . . . . . . . . . . . . . . 29 N. Staffing . . . . . . . . . . . . . . . . . . . . . . 32 0. Inmate ACtiV ities . . . . . . . . . . . . . . . . . 34 P. Religious Programming . . . . . . . . . . . . . . . 35 Q. Visitation . . . . . . . . . . . . . . . . . . . . . 36 R. Access to the Courts . . . . . . . . . . . . . . . . 37 S. Inmate Work Assignments . . . . . . . . . . . . . . 40 T. Clothing Supply and Issue . . . . . . . . . . . . . 41 U. Medical . . . . . . . . . . . . . . . . . . . . . . 42 V. Mental Health . . . . . . . . . . . . . . . . . . . 50 W. Dental . . . . . . . . . . . . . . . . . . . . . . . 52 X. Pharmacy . . . . . . . . . . . . . . . . . . . . 53 Y. Mail and Communications . . . . . . . . . . . . . . 54 Z . Inmate Handbook . . . . . . . . . . . . . . . . . . 56 AA. DOC Annual Inspections . . . . . . . . . . . . . . . 57 SECTION VII PRIVATIZATION . . . . . . . . . . . . . . . . . . . . . 57 SECTION VIII CLOSURE OF MAIN JAIL AND CONSTRUCTION OF NEW JAIL . 57 SECTION IX CONTINUING ROLE OF PLAINTIFFS' COUNSEL AND SPECIAL MASTER . . . . . . . . . . . . . . . . . . . . . . 58 SECTION X ADDITIONAL COVENANTS . . . . . . . . . . . . . . . . . . 61 SECTION XI CONTINUED EFFECTIVENESS AND RETENTION OF JURISDIC- TION . . . . . . . . . . . . . . . . . . . . . . . 61 SECTION XII COSTS, EXPENSES AND ATTORNEYS' FEES . . . . . . . . . . 61 SECTION XIII EFFECTIVENESS OF AGREEMENT . . . . . . . . . . . . . . . 62 SE_`1'10N XIV nIST-.SSAL Or DEFENDANTS IN THEIR INDIVIDUAL CAPAC- . . . . . . . . . . . . . . . . . . . . . . r� .. r EMENT, ME'PGER . . . . }';e Ei-•St Arended Complaint hereir, was served on January 7, 1981, on behalf of plaintiffs and others similarly situated, alleging, inter alia, that defendants have failed to carry out their statutory and constitutional duties relating to 2 the maintenance and operation of the Monroe County Jail and further alleging that, as a result of defendants' acts and omissions, taken under color of state law, defendants have caused plaintiffs continued confinement under conditions that violate plaintiffs' constitutional rights; and WHEREAS the First Amended Complaint asserts causes of action again defendants arising under, and jurisdiction pursuant to 42 U.S.C. §§ 1983 and 1988; 28 U.S.C. §§ 1331, 1343(a)(3), 2201 and 2202; and the Constitution of the United States, specifically but not limited to the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments thereto; and WHEREAS, pursuant to Rule 23 of the Federal Rules of Civil Procedure, this action has been certified by the Court as a class action on behalf of all persons who are currently incarcerated or who will in the future be incarcerated in any Jail in Monroe County; and WHEREAS the defendants have filed an Answer denying the allegations in the First Amended Complaint; and k"-AREAS the signatories to this Stipulation and Agreement of _'.,"._e.ent (hereinafter "Agreement"j represent that they are t,3 e-.nt-er I.nt th s Agreemen - anij to to}:E' all st. fir' of l.he.m h�.r this 1i YAP ent; and 'fzPAS plaintiffs consider it desirable and in their best — --sts, and in the hest interests of the members of plain- tiffs' class, to settle the issues set forth herein, by entering into this Agreement; and 3 WHEREAS defendants consider it desirable and in their best interests to settle the issues set forth in the First Amended Complaint by entering this Agreement; and WHEREAS the parties have entered into this Agreement as a compromised settlement of their disputes, intending that this Agreement shall not be construed as an admission that any condi- tion, policy, rule, procedure, or omission of the defendants or any of their employees or agents were or are in any way in violation of any rights of the plaintiffs; NOW THEREFORE, the parties, by and through their Counsel, hereby stipulate and agree as follows: SECTION I. SUBMISSION TO THE COURT OF PROPOSED SETTLEMENT AND USE OF BEST EFFORTS TO OBTAIN APPROVAL AND ENTRY OF JUDGMENT 1. Promptly upon execution of this Agreement, counsel for the parties shall jointly submit such agreement to the Court for its approval and recommend that the Court approve the Agreement. Counsel for both parties also shall use their best efforts to consummate this settlement, obtain the Court's approval of this Agre�,cent, and obtain entry of a final judgment incorporating the ­r.'C-a ___.o-.^.. .)f this A reener_t. SECTION 11. SETTLEMENT CLASS In accordance with the Court's Certification order, this action shall be maintained as a class action on behalf of all persons who are currently incarcerated at Jails operated by Monroe County or the Sheriff of Monroe County or who will be 4 incarcerated in the future. By agreement of the parties, this includes any jails that Monroe County or the Sheriff of Monroe County may in the future contract with a private company to operate. SECTION III. NOTICE TO CLASS MEMBERS 3. Pursuant to.Rule 23(e), Federal Rules of Civil Proce- dure, the Sheriff of Monroe County, within ten (10) days of the Court's approval of the Notice of Proposed Settlement, attached to this Agreement as Exhibit A, shall provide notice of this Agreement to those members of the plaintiffs' class presently confined in Monroe County's jails by providing a copy to each class member in each jail on the date of distribution and by posting in each jail in a place accessible to inmates generally, including those inmates in administrative, disciplinary or solitary confinement, a notice in the form attached hereto as Exhibit A. Exhibit A shall be posted and distributed in English, Spanish, and Creole. The cost of nroviding such notice and distributing copies of =J.s Agreement shall. be borne by the Sheriff of Monroe County in Fi .. ..:i �_ "`: :.� lei' . i _Ia.` s men,"7ers shall. have tiv °�;: �. �+' '2v) `aays_ c-?r ?7Ct1^e `-c then" to file w,th the vlerk o� t�7E3 "zA� anv ob LOf Monroe County shall provide free paper, envelopes an, postage to any indigent inmate desirous of filing objections to this Agree- ment. such conamunications with the court shall be considered 5 legal mail. All objections will be considered fully by the Court. ,SECTION IV. INTENT 4. It is the intent of this Agreement that all jail facili- ties now operated in Monroe County or hereinafter operated in Monroe County shall be operated in a manner that complies with the Constitution of the United States and the State of Florida and with applicable federal and Florida law including Chapter 33-8, Florida Administrative Code. 5. The parties recognize that a new Main Jail is being constructed with a significantly larger inmate capacity. As a result, the parties recognize that the staffing levels called for in this Agreement will have to be increased to reflect the increased numbers of inmates. With respect to correctional staff, the parties agree that at a minimum, the new Main Jail will be staffed in accordance with the staffing analysis of the Florida Department of Corrections. With respect to non- correc-tional staff, excepting medical care providers, the parties agree the, _ tl--? ?_eve! of non -correctional staffing called for in this ' ee^ent at the M� �mar l shall be increased apfiropriately. T), _ _roced?_-:-e for determining correctional medical staffing is _. >c J a:; Section VI-T. of this Agreement. G. 1'he absenc_ of staff er other resources shall not Wurnis:, the Defendants a basis to ignore the intent of this Agreement. 7. In considering any dispute that might arise between the parties, this Agreement shall govern. SECTION V. GENERAL PROVISIONS 8. This Agreement shall bind all parties to this action as well as the successors in office to the Sheriff and County Commissioners. Defendants Monroe County and the Sheriff of Monroe County agree to use their best efforts to make the re- quirements of this Agreement known to each of their employees, deputies, and agents who are responsible for the operation of any jail. Further, the County and Sheriff shall ensure that the relevant requirements or this Agreement are made known to and complied with by any private parties with whom the Sheriff or County now contracts or shall in the future contract with to provide goods or services to any of the Monroe County Detention Facilities. 9. Should Monroe County or the Sheriff of Monroe County hereinafter enter into a contract for the operation of a jail ?`ili"-V by another entity, whether Public or private, the County trp ,,w ^s the case ^stir be shall insure that the terms '7a.7 _- �:.Nrc�Gar:r: .._: E'C7�' }C�te iit0 such ont-act- ^u the County, or Monroe County, shall be required to 11:71:1..:_. ::'i , the enti' y � Wit= t i1g t�7E'' j?.Llcomp'� cS W1th the .v.i"i;,- of ay. v ezq.y 2- e gent. 7 10. This Agreement applies to all detention facilities now or hereafter operated, directly or by contract, by Monroe County or the Sheriff. 11. As used in this Agreement: (a) "Inmate" means an individual in the custody of the Sheriff of Monroe County or in a jail in Monroe County or in the custody of any privately operated facility which is operated pursuant to contract with Monroe County or the Monroe County Sheriff. (b) "Main Jail" means the Monroe County Jail at 500 White- head Street, Key West, Florida. (c) Unless specifically designated, "facility or facili- ties" means any jail in Monroe County. (d) "New Main Jail" means the replacement facility for the Main Jail, which is currently under construction on Stock Island. (e) "Officer -in charge" means the Sheriff or the individual designated by the Sheriff or County Commission to be in charge of each correctional facility or jail. SECTION VI. OPFRATTNG REQUIREMENTS ? . DcC nts shall operate and maintain 4ail facilities ce, °r-j_tl: the following A. Capacity and Rousing 'a. -'he gain Jail shall not exceed the Court -imposed capes city of one hundred and ninety-six (196) inmates. 8 14. The Plantation Key Jail population shall not exceed the Court -imposed capacity of forty-six (46) inmates. 15. The Marathon Jail population shall not exceed the Court -imposed capacity of fifty-seven (57) inmates. 16. For every day after April 19, 1991 that the midnight population count of one or more facilities exceeds the above cited caps, the defendants shall have a forty-eight (48) hour grace period to cure said violation(s). At the end of this period, the County will be assessed a fine of $750.00 per day by the Court for each day it is not in compliance with all ordered caps; said period of fining shall not exceed seven (7) days each time it is invoked. if after the seven (7) day period of fining the County is still unwilling or unable to reduce the jail population below all ordered caps, all Monroe County jail facili- ties will be closed to new admissions. A new admission will be permitted, however, if a jail facility which has exceeded its cap releases two individuals upon the system's receipt of any new admission. This procedure for limiting new admissions shall rennin in effect until such time as all ordered caps are reached -nee. ' hc- fort :j- _fight ; 42 f hour grace period may o.;ly be b-, the Defendants once every thirty (30) days. If within t_�2_ rtyr ,301 days prior to exceeding an ordered cap the Defendants ha,vo invokeu the forty-eight (48) :-lour grace period, no grace Period will be allowed and the County will immediately enter the seven (7) day period of fining upon noncompliance. WC 18. The above cited fine is to be paid to the Clerk of the United states District Court for the Southern District of Florida no later than thirty (30) days after the date that it is in- curred. Said fine money is to be used for a purpose or purposes to be later determined by this Court. 19. All newly -admitted inmates shall be provided with a bed, mattress, and bedding, and housed in a cell or dormitory de- signed for sleeping purposes, within six (6) hours of booking. This six (6) hour housing requirement shall be mandatory for the existing Main Jail in Key West. In the other facilities, includ- ing the new Main Jail, should the six (6) hour period currently prescribed in Chapter 33-8 of the Florida Administrative Code be changed, then in that event, the new time period shall be con- trolling and shall supersede this Agreement, provided, however, that the holding cell facilities in the New Main Jail shall contain a toilet, a water cooler, hot or tempered water, a shower, and benches. In the event that either Chapter 33-8 or Florida Statutes § 951.23 is repealed, the last time period Provided in effect at the time of the repeal shall govern. 2�, ThG: number of inmates in anv new or newly renovated .i_; s "! riot exceed the Florida Department of CorrectionsI s; = apac ty. Should the factoring process be eliminated by the Florida Department of Corrections, the capacity of each facility in c,)eration at the time the factoring process is eliminated shall be limited to the last factored capacity and shall only be 10 increased as additional housing areas are made available for inmates. In that event, the inmate capacity shall not increase in an amount greater than the increase that the additional housing space bears to the original housing space available. B. Improvements and Restrictions on Inmate Housing -Areas 22. In the Main Jail there shall be an absolute cap of ten (10) inmates for Cellblock #1, ten (10) inmates for Cellblock #2, ten (10) inmates for Cellblock #3, and four (4) inmates for Cellblock #4. One set of bunks, each containing two beds, shall be removed from both of the cell areas in Cellblock #4. The sets of bunks to be removed shall be those nearest to the commode in each area. This shall be accomplished within thirty (30) days of the signing of the order approving this Agreement. As to the Four -Man Security cells adjoining Cellblock #4, there shall be an absolute cap of three (3) inmates .for the forward cell area. The last isolation cell at the end of and around the corner from the forward cell area of the Four Man Security cell area shall not be used t.o house inmates under any circumstances. Attached and inc4rporated by reference to this Agreement is a diagram of the crond ¢a.hnr of try Maan Jain, which identifies the afore -mentioned ww_..ti.s. 23. Isolation cells numbers 1, 2, 3, and 4, located in the gem,��e area cf the Main Jail, and currently used for storage and as a tem-rorarholding area, shall not be used to house inmates until roper plumbing, including sinks, lavatories, provisions for the supply of cold and tempered water, and adequate ventila- 11 tion is provided for each cell in use, and each cell in use has been approved for occupation by the Jail Inspector for the Florida Department of Corrections and a correctional officer assigned to the post created if any of these cells are used. C. Improvements to the Physical Plant of the Main Jail 24. The officer -in -charge or his designee shall be respon- sible for periodic (at least weekly) inspections of the physical condition of each facility. The officer -in -charge or his desig- nee shall institute corrective action for any deficiencies discovered during the inspection. 25. The County shall increase cell illumination to at least twenty (20) foot candles at thirty (30) inches above the floor in Cellblocks 01, 2, 3, and 4, the 8-Bunk Cell, the 4 Man Security Cell, and any other area of the Main Jail which fails to provide at least twenty (20) foot candies at thirty (30) inches above the floor. 26. The County shall repair all broken windows and window screens within five (5) working days of the approval of this Igreement and shall in the future repair all broken windows and scrp4?rs ti?'r`rl'>'_en within five (5) working days after discovery. - . Count-, stall crr:?ct the water drip from the Lei'i c in tie eight -bunk female confinement unit adjacent to the fe t:a :'_e dorr:izory within thirty (30) days of the entry of an order appr_=ving this Agreement. 28. The County shall sandblast and paint with epoxy paint the showers in Cellblocks #1, 2, 3, and 4 in the Main Jail in key 12 West within thirty (30) days of the entry of an order approving this Agreement. The County shall thereafter paint and repair the showers in Cellblocks #1, 2, 3, and 4 whenever rusted. The County shall repair all plumbing in Cellblocks 41., 2, 3, and 4 within thirty (30) days of the entry of an order approving this Agreement. The Sheriff and the County shall ensure that the showers and plumbing.*in Cellblocks #1, 2, 3, and 4 thereafter remain free of rust, in good working order, and free from leaks and foul odor. 29. The County shall be responsible for ensuring that temperate or hot running water shall be provided within thirty (30) days of the entry of an order approving this Agreement in the eight -Bunk Cell and Cell #313 in the Main Jail. Thereafter, temperate or hot running water shall be provided to all cells and dormitories in all jail facilities. 30. The County shall be responsible for ensuring that any other plumbing fixtures, and any ventilation or air conditioning equipment, which are inoperable or malfunctioning on the date Agreement is approved shall be immediately repaired and t._`CrC_a stCr mainta.4 —d gocd cperatln; condition. All plumbing ..ires and ventilation an:� ac i.- conditioning equipment which �­ecom, inoperable or malfunctions in the future shall be immedi- ately repairer. 31. All housing cells and cell floor areas which are in need of painting shall be painted within thirty (30) days of the approval of this Agreement. Thereafter, the defendants shall 13 ensure that all areas of the jails are properly maintained and painted. D. sanitation, maintenance and Repairs 32. A sanitation, maintenance and repair program shall be instituted immediately and shall be consistent with the applica- ble standards of the Health Program Office of the Department of Health and Rehabilitative Services (HRS), pursuant to Rule IOD-7, Florida Administrative Code. 33. An extermination contract shall be maintained with respect to all jail facilities and shall provide for periodic inspection and treatment intended to rid the facilities of all insects and vermin. 34. Defendants shall take: immediate action to provide for alterations, repairs, and renovations of the physical plant as needed to maintain compliance with all applicable safety codes, and to insure the health, safety, and welfare of the inmate population. E. classification 35. The parties recognize that a proper classification ~t- -s a-*-- .ltc nininize the risk of harm to inn.atec aid The parties further recognize that a complete classi- fication system as required by Chapter 33-8.005, Florida Adminis- trative rode, cannot be implemented in the existing Main Jail clue to linitations or space and building design. Notwithstanding these limitations, the Sheriff has prepared a classification system designed to make optimum use of the existing resources. A 14 written description of the plan will be provided Plaintiffs' Counsel no later than January 30, 1992. Plaintiffs' Counsel shall have thirty (30) days to review the plan. If the plan is satisfactory to Plaintiffs' Counsel, it shall be implemented by the Sheriff, and its use shall continue so long as the existing Main Jail is used. If Plaintiffs' Counsel disagree with all or any aspect of the plan, they shall communicate their objections in writing to the Defendants, who shall respond in writing to the Plaintiffs' Counsel within thirty (30) days from receipt. If the parties are unable, after good faith discussion and negotiation, to agree upon a classification system by March 30, 1992, then an expert in penological classification systems agreed upon by the parties shall be consulted to resolve the dispute. The parties agree to abide by the decision of the expert with regard to any disputed issues. In the event the parties are unable to agree upon an expert in penological classification, Plaintiffs' Counsel shall pick an expert, the Sheriff shall pick an expert, and the two (2) experts shall pick a third expert. The three (3) experts sail then devise a classification system. The cost of devising system shall be borne by the County. parties further recognize that a proper classi- _ca ticn sv s ten, Is also essential to minimize the risk of harm to a:-d officers in. the New Main Jail. The Sheriff shall prepare an6 submit a written description of the New Main Jail's classification plan to Plaintiffs' Counsel no later than. January 1, 1993. Plaintiffs' Counsel shall have thirty (30) days to 15 review the plan. if the plan is satisfactory to Plaintiffs' Counsel, it shall be implemented by the Sheriff, and its use shall continue. If Plaintiffs' Counsel disagree with any aspect of the plan, they shall communicate their objections in writing to the Defendants, who shall respond in writing to Plaintiffs' Counsel within thirty (30) days from receipt, and thereafter the parties shall attempt -to settle their differences through good faith negotiations. if the parties are unable, after good faith discussion and negotiation, to agree upon a classification plan by March 30, 1993, then an expert in penological classification systems agreed upon by the parties shall be consulted to resolve the dispute. The parties agree to abide by the decision of the expert with regard to any disputed issues. in the event the parties are unable to agree upon an expert in penological classi- fication, Plaintiffs' Counsel shall pick an expert, the Sheriff shall pick an expert, and the two (2) experts shall pick a third expert. The three (3) experts shall then resolve the differences between the parties. The cost of.the experts shall be borne by the County. Once the plan is complete, it shall be implemented b,;, '-he Sher.-iff i_- the new Main Jail. Any subsequent changes in _1.-ISS -fica ion plan shall be in accordance with Florida lava 4n zffect on the date of the change. 3 Any classification system devised shall provide for the aueruate housing of special, needs inmates. Special needs inmates are defined as those that present a threat to the staff, other inmates, or to themselves. Special needs inmates include the 16 mentally ill, alcoholic, drug addict, sex deviate, or suicide risk, or persons with contagious or communicable diseases. Special needs inmates, who present a threat to the staff, other inmates, or themselves, shall be separated and closely observed. Any inmate who is identified as at risk for suicide shall not be housed in a single occupancy cell unless the inmate is observed by direct visual observation twenty-four (24) hours each day. Close supervision for special needs inmates shall include regu- lar, documented physical sight checks by correctional officers or medical staff persons at intervals not to exceed every 15 min- utes. 38. The defendants shall employ a sufficient number of individuals trained as classification officers so as to implement the provisions of this section of the Agreement at all facilities now or hereafter used to house inmates. The training of the classification officers shall be completed within ninety (90) days of the implementation of the classification system. F. Juveniles 39. "Juvenile" means a person who is under the age of e i g1lteen r, ) x ! . �',o 4uvenile sha_._ :. adrm;ytted into a ail unless he er .,s .(ai at least fourteen (14) years of age and whose case has been certified and transferred for trial as if the juvenile were an adult pursuant to the provisions of Florida Statutes §§29.022(5)a and 39.022(5)b (1991); or 17 (b) a juvenile who at the time of the commission of the alleged offense was sixteen (16) or seventeen (17) years of age and against whom an information has been filed by the State Attorney transferring the juvenile for prosecution as an adult pursuant to the provisions of Florida Statute §39.047(4)(e)5 (1991); or (c) a juvenile,of any age indicted by a grand jury on an offense punishable by death or life imprisonment pursuant to the provisions of Florida Statute §39.022(5)(c)(1991); or (d) a juvenile who is wanted in another jurisdiction for prosecution as an adult pursuant to the provisions of Florida Statute §39.022 (4) (b) (1991) . 41. When receiving and admitting a juvenile as provided for in paragraph forty (40) of this Agreement, defendants shall inquire and determine that all established rules, regulations and legal procedures for such admission are net. Defendants shall ensure that the arrest and booking report is accompanied by either the grand jury indictment, the court order certifying that the jayTenile has been wal.ved for prosecution as an adult, or a ^erfifi^ate of filing of a direct information by the State `nless wanted in another jurisdiction as an adult., a s all not be placed in the jail if one of the aforemen-- '.:ion�_J egal documents is not present with the arrest and booking report. such proper legal documentation shall remain in the juvenile's file at the jail at all times. 18 42. Juveniles who are beyond the control of HRS juvenile detention center staff shall not be accepted by the jail unless the juveniles have been transferred for prosecution as adults by waiver, direct file or grand jury indictment. 43. A juvenile who is alleged to be in need of services or is alleged to be from a family in need of services and is not charged with a crime.shall not be placed in a jail under any circumstances. This applies to juveniles formerly known as status offenders which includes runaways, truants, and ungovern- ables. 44. A juvenile who has not been transferred to the adult system by direct file, waiver, or grand jury indictment as provided for in paragraph forty (40), infra, may be held in temporary custody for a period not to exceed six (6) hours in a secure booking area of a jail for the purpose of fingerprinting or photographing the juvenile or awaiting appropriate transporta- tion to the Department of Health and Rehabilitative Services, provided no regular sight and sound contact between the juvenile and adult inmates or trustees is permitted and provided the -F ^iM ty h?s adequate staff to supervise and monitor activities at all times. Y�. When a juvenile has been transferred f^r presecution as - an adulit ty direct file, waiver, or grand jury indictment or is tYan"ed b,,.• another jurisdiction for prosecution as an adult, the juvenile shall be housed in the present Main Jail as separately as possible from adult inmates to prohibit the juvenile from 19 having regular contact with incarcerated adults, including trust- ees. "Regular contact" means sight and sound contact. Separa- tion of the these juveniles from adults shall permit no more than haphazard or accidental contact. 46. When a juvenile has been transferred for prosecution as an adult by direct file, waiver, or grand jury indictment or is wanted by another jurisdiction for prosecution as an adult, the juvenile shall be housed in the New Main Jail separately from adult inmates to prohibit the juvenile from having regular contact with incarcerated adults, including trustees. "Regular contact" means sight and sound contact. Separation of the these juveniles from adults shall permit no more than haphazard or accidental contact. 47. Juveniles shall not be housed at the Marathon or Plantation Key Jails. 43. The New Main Jail shall contain a separate section for juveniles and shall have adequate staff to supervise and monitor the juvenile's activities at. all times. Supervision and monitor- ing cf juveniles shall include physical observation and written d^c��.rnerve? checks by correctional officers at intervals not to :_ teen ;15) minutes. Defendants shall not use any forms for ttis documented check on which the times of observation are pre -written. 49. Under no circumstances shall a juvenile, prior to convictwon and sentencing, be placed in the same cell as an adult. 20 50. Juveniles may be housed as adults in the jail if all the following conditions exist: (a) the juvenile has certified for prosecution as an adult by the courts, by direct file, waiver, or grand jury indictment; (b) the juvenile has been tried as an adult; (c) the juvenile has been found to have committed the offense for which he -was charged or a lessor included offense; and (d) the juvenile has been sentenced as an adult. However, no juvenile shall be placed in adult housing unless the juven- ile's classification is the same as the adults with whom the juvenile is housed. G. Discipline and order 51. The rules and regulations governing the conduct of inmates and visitors shall be posted and available to each inmate and all visitors. The rules and regulations shall include prohibited acts and the disciplinary action that can or may be taken to ensure proper conduct. A suggested list of prohibited acts is contained in subsection (16) of Rule 33-8.013, Florida Ad:" in.4 --t-at i've Code (1991) . The rules and regulations shall v-he ':r _Cadures for any disciplinary action and the ae_t!-od fox, t_-:e establishment and loss of privileges. Translation~: ,w.yen appropr:ate) shall be provided. Action to be taken when there-, 's a violation of riles by visitors shall also be specifies in 'tree rules and regulations. 21 52. A disciplinary committee shall be established by the Sheriff or his designee consisting of at least three members with one member to be designated as the chair. Any member of the disciplinary committee shall be disqualified if he has partici- pated as an investigating officer or witness in the case against the inmate. 53. When an infraction of the rules is alleged to have occurred, a disciplinary report shall be processed in accordance with the rules and regulations. The individual who witnessed the alleged violation by the inmate shall prepare the disciplinary report and it shall include, but shall not be limited to the following: (a) date of infraction; (b) place and time of infraction; (c) date of report; (d) the specific charge, to include identification of the rule or statute violated; (e) details of the infraction; (f) the actions taken by the individual who witnessed the or the names of all witnesses. Where disclosure of wit- °^ess & ;wind endanger the welfare of the inmate, other inmate: or :t_af¢, the names of witnesses and the names of confidential ,-,forma nts shall be maintained in a confidential file. 54. The Sheriff or his designee shall cause an investiga- tion to be made of the allegations of acts of prohibited conduct 22 or violation of criminal statutes. The report of investigation shall be forwarded to the disciplinary committee described in paragraph fifty-two (52), infra, along with the original disci- plinary report. The disciplinary report may include space for the required investigation. 55. Inmates who are accused of infractions shall be noti- fied in writing at least twenty-four (24) hours in advance of the charges against them and given that period to prepare their defense. They shall acknowledge the receipt of the charges, or there shall be a note in the record that the charges were deliv- ered. The inmate may waive the twenty-four (24) hour notifica- tion in writing. 56. A hearing shall be held as soon as possible as circum- stances permit after the alleged occurrence of the infraction or violation, after allowing the required twenty-four (24) hours notification period of the charges to the inmate, but in no event later than five (5) working days alter the incident. "Working days" shall mean Monday through Friday, excluding holidays. It shall be the requirement of the disciplinary committee, through is ?air, to determi-e that the inmate properly understands the r.:��arges against 'im and the possible adverse actions that can result, from, the disciplinary committee hearing. 57. Fvhen holding the disciplinary hearing, the chair of the c'onnmittee or the majority of the members shall have authority for the following actions: 23 (a) at their discretion they may call witnesses or obtain documents; (b) at their discretion they may approve inmate requests for assistance, summon witnesses requested by the inmate, or obtain documents which the inmates wishes to present; (c) they shall permit a staff member selected by the accused to assist the inmate during the hearing when the prisoner is apparently illiterate, has a language barrier or the complexi- ty of the issues makes it unlikely that the inmate would be able to properly represent himself. The disciplinary committee, through its chair, shall require the proper decorum throughout the disciplinary hearing. 58. An inmate shall have the following rights at a disci- plinary hearing: (a) an inmate charged with a prohibited rule violation shall be present at the hearing unless he waives in writing his right to attend the hearing or his behavior during the hearing justifies his removal from the hearing; the absence of an inmate from a hearing and the reason therefore shall be documented; "'b 1 +-h2 'innate shal_? receive a copy of the written deci- "C) the time spent by an inmate in disciplinary segregation silall be proportionate to the offense corritted, but in no event shall be greater than thirty (30) days; (d) an inmate shall have the right to appeal the decision of the hearing committee to the officer -in -charge; 24 (e) if the inmate is found not guilty, the disciplinary report and all references to it shall be so indicated in his file; and .(f) the decision shall be based solely upon the evidence presented at the hearing, and shall contain a statement of the reasons for the decision and the evidence relied upon. 59. The results -of the hearing after the disciplinary committee has been in closed conference to discuss the evidence presented shall be announced to the inmate so that he knows what recommendations will be made to the officer -in -charge. The recommendations will be forwarded to the officer -in -charge for agreement or reduction and implementation. The officer -in -charge may not increase the disciplinary penalties suggested by the disciplinary committee. 50. Discipline shall not be arbitrary nor capricious nor in the nature of retaliation or revenge. Corporal punishment of any kind is prohibited. Shackles or other personal restraints shall not be used as punishment. This prohibition shall not apply to inmates in transit or to inmates whose behavior presents an danger to themselves, other inmates, or staff. Such � :-:a -_ .nay be temperarily restrained by such devices only upon c_-de -M cf the officer -in --charge and only if such inmates are super,, i sed and, monitored at all times. U1 znmatVs in disciplinary or administrative confinement shall be checked at intervals not to exceed seventy-two (72) hours by the medical staff and the time of his release will also 25 be recorded and filed. Each inmate in administrative confinement shall receive housing, food, clothing, medical care, exercise, visitation, showers and other services and privileges comparable to those available to the general population. 62. The defendants shall establish a system to immediately notify and report all incidents concerning inmate deaths, serious injuries to inmates,.strikes involving seven or more inmates, riots, attempted suicides, and any other serious or unusual circumstances that occur, and for a period ending twenty (20) months after the opening of the New Main Jail to Plaintiffs, counsel, and the Special Master. 63. Whenever it is necessary to use force on an inmate, a written use of force report shall be prepared by the staff member or members using force, shall be reviewed by the Shift Supervi- sor, and shall be submitted to the officer -in -charge. A medical examination of the inmate shall be made a part of the "use of force" report. S. Myers Act Persons 6 n it is the policy of the defendants to refrain from --etai-Ing intoxicated persons, pursuant to the Myers Act, Florida ir. correctional facilities. The defendants -hall nct dean intoxicated persons in the existing Main Jail. t. aefend ants shall only detain intoxicated persons in the Plantation Key Jail, Marathon Jail, and the New Main Jail when all other housing aptions, community facilities and hospitals for intoxicated persons are unavailable. All intoxicated persons 26 temporarily incarcerated shall be detained in appropriate cells and shall be detained only until they are sober. "Appropriate cells" shall be retrofitted as necessary to minimize the risk of suicide, including the removal of bunks,, the removal of protrud- ing fixtures, and otherwise made as safe as possible. I. Baker Act Persons 65. Baker Act persons, that is persons believed to be or found to be a danger to themselves or others pursuant to Florida Statutes § 394.451 et seg., shall not be admitted to or detained in any of the existing facilities or the new jail contrary to the provisions of Chapter 394, Florida Statutes. Whenever, in the opinion of jail medical staff, an inmate appears to meet the criteria for a Baker Act admission, the Jail Physician or Jail Psychiatrist shall so advise the officer -in -charge and the Jail Administrator officer -in -charge shall be responsible for initiat- ing a transfer to a Baker Act receiving facility. J. Handicapge_d accessibility 66. Defendants shall provide for the needs of handicapped inmates. Within ten (10) days of the date of approval of this gre energy, defendants shall ensure that at .least one facility has �.t cie housing area and bathroom area which complies with the handicapped accessibl'.lit.y standards of Rules 13D-1 and D-17 rlcrida Ad-ministrative Code, and the United States of America Standards Institute (ANSI). Each facility shall have at least one (1) bathroom area which complies with the handicapper) accessibility standards of Rules 13D-1 and 13D-17, Florida 27 Administrative Code, and the United States of America Standards Institute (ANSI). 67. The New Main Jail shall comply with the handicapped accessibility standards of Rules 13D-1 and 13D--17, Florida Administrative Code, and the United States of America Standards Institute (ANSI) in at least one housing area, in all common areas, and in at least one visiting and attorney -interview area. K. Exercise 68. All inmates shall have the opportunity to have a minimum of two (2) hours of outdoor exercise three (3) times per week, weather permitting. In the event of inclement weather, every effort shall be made to make-up the lost exercise period. The opportunity to exercise shall be documented in a daily log. 69. At the Main Jail, two (2) full-time recreational officers shall be employed to organize and implement the exercise program. 70. Additional exercise equipment shall be added to the exercise areas at all facilities. At the Main Jail this shall include one (1) additional basketball goal, and other exercise c :ip h Y s�, ch as pull-up bars, dip bars, and sit-up incline erczas. S11 exercise equipment shall! be added to Plantation e,,, and M-rathon Jails. L. Fire Safety 7L. Defendants zhall obtain at least an annual inspection of all jail facilities by the State Fire Marshal. Copies of the fire inspection report shall be filed and available for review at 28 each facility. Defendants agree to pay whatever fees are re- quired for this inspection. 72. All fire safety violations reported by the State Fire Marshal shall be immediately corrected. 73. Fire exit and evacuation drills shall be conducted at least every three (3) months. These drills shall not involve taking the inmates oAt of their cells or dormitories. The drills shall be documented in Writing, filed and available for review at each facility. 74. The second exit in the laundry in the Main Jail shall be kept unobstructed. The second exit in the kitchen in the Main Jail shall be kept unobstructed. 75. The food storage and dry goods rooms adjacent to the kitchen in the Main Jail shall be protected by sprinklers and smoke detectors tied into the general alarm system in the main control center. This shall be accomplished by the County within thirty (30) days of the entry of the order approving this Agree -- rent. 76. Inmates shall not be allowed to use cardboard boxes and paper hags to store their clothing, personal effects and canteen ids, ?,__� inmates shall be provided metal footlockers or other _irep.ror_ or fil-e-resistant containers for personals. property. M. Food Service 77. The defendants will request monthly sanitation inspec- tions of ail kitchens by the Florida Department of Health and 29 Rehabilitative Services. Deficiencies shall be corrected forth- with. 78. Kitchen staff, and inmate workers, shall be trained in proper sanitation techniques. 79. At all times, dry goods shall be properly stored in containers and on shelves, pallets, or other modalities which will keep them off the floor. 80. Water shall not be allowed to accumulate an the kitchen floor. 81. Garbage and dry trash shall be properly placed in covered containers. Trash pickup shall be scheduled at frequent enough intervals to avoid an accumulation of garbage. 82. The kitchen staff's bathroom, located adjacent to the kitchen in the existing Main Jail, shall be completely cleaned and repaired by the County and made functionable and sanitary. it shall thereafter be maintained in a clean and sanitary condi- tion with all plumbing fixtures in working condition. Signs shall be posted requiring kitchen workers to wash their hands after bathroom use. The bathroom repairs shall be completed :'.thin si=:t ' 6C ` days cf the entry of the order approving this i �reement. 83. s dietician/nutritionist shall be charged with the duty c supervising nenu planning to ensure that the diet is adequate and varied. Menus shall be planned for not less than twenty- eight (28) days in advance and certified by a dietician/nutri- tionist. Defendants shall comply with the menu except in cases 30 of emergency, such as a hurricane, or as modified by the Jail Physician. 84. The Sheriff, or his designee, and the Food Service Director shall conduct a thorough inspection of all food service areas at least weekly. Additionally, at least one (1) meal per week shall be selected at random by the Sheriff or his designee., who shall inspect the appearance, quantity, quality, and serving temperature of each meal item, utilizing scales, measuring cups, thermometers and any other appropriate measuring devices. A written report of each weekly inspection shall be maintained and available for review. All deficiencies noted in the inspection report shall be immediately corrected. The report shall be main- tained on file for review. 85. Foods intended to be served hot shall be served hot. 86. The daily calorie count of the meals served in the jail shall not be reduced below twenty-eight hundred (2800) Calories for any inmate without the approval of the Jail Physician or some other person licensed to practice medicine in the State of Florida. 97, Ail internal temperature gauge shall be immediately �>d I- the freezer at the Main Jail. 'the temperature shall bc closely observed to insure that it remains on the average at y-east. zero (0) degrees Fahrenheit or below. Should the tempera - `ire continue to be above zero (0) degrees Fahrenheit, the freezer shall be immediately repaired or replaced. 31 88. Defendants shall request that the Health Program Office of the Florida Department of Health and Rehabilitative Services (HRS) conducts a Food Service inspection every three (3) months, as required by State law. Food service operations shall conform to the acceptable standards of the Florida Department of Health and Rehabilitative Services (HRS) Rules 1oD-13, Florida Adminis- trative Code. All HRS inspection reports shall be filed and readily available for review. All deficiencies noted in the inspection report shall be immediately corrected. In the event that the Health Program office of the Florida Department of Health and Rehabilitative Services (HRS) does not conduct a Food Service inspection report every three (3) months, the Sheriff shall notify the Special Master, with a copy to Plaintiffs' Counsel, within one (1) week. 89. Special diets shall be made available to accommodate inmates with legitimate religious or medical requirements. 90. The facility shall have adequate written procedures for the control of sensitive food items which could be used for the pioduc;ticn or manufacture of contraband beverages. Once written, shal.l be followed. N. Staffing =.-�efe?dants shall, at all times, provide sufficient :eta: f t:c) caz-:: ' out t2 a provisions of this Agreement. 92. The number- of correctional officer posts that shall be staffed at. all times in the existing Main Jail is eight (8), or 32 the number necessary to meet the standards of the Florida Depart- ment of Corrections, whichever is greater. 93. The number of correctional officer posts that shall be staffed at all times in the Plantation Key Jail is three (3), or the number necessary to meet the standards of the Florida Depart- ment of Corrections, whichever is greater. 94. The number.of correctional officer posts that shall be staffed at all times in the Marathon Jail is three (3), or the number necessary to meet the standards of the Florida Department of Corrections, whichever is greater. 95. The number of correctional officer posts that shall be staffed at the New Main Jail shall not be less than as required by the Florida Department of Corrections. In the event that the Florida Department of Corrections is unable to provide a staffing analysis at the time the New Main Jail opens, the number of correctional posts for the New Main Jail shall be determined by a correctional expert recommended by the National Institute of Corrections or other nationally recognized body in the field of corrections. Such expert shall be selected jointly by Plain- �. T. fat?nsel and Defendants. In the event the parties are 'µnabl�_, t.; agree upon a correctional staffing expert, Plaintiffs' 'Yunsei shwa pick an expert, the Sheriff shall pick an expert, an= the two (2) experts shall. then pick a third expert. The three ;3) experts shall then devise a staffing analysis. The cost of devising the staffing analysis shall be borne by the County. 33 96. Female inmates shall not be housed overnighC in a facility which does not have a female correctional officer on duty. 97. All correctional officers employed by the defendants shall be certified or possess a valid temporary employment authorization, in compliance with the criminal Justice Standards and Training Commission's requirements. All correctional offi- cers shall keep their certification current. Newly hired correc- tional officers, whether certified or not, prior to commencing work, shall first receive forty (40) hours in-house training. In-house training shall include, but not be limited to, reviewing poEt orders, fire evacuation and fire drill procedures, the requirements of Chapter 33-8, Florida Administrative Code, the Inmate Handbook, the rules and regulations of the jail, and the provisions of this Stipulation and Agreement of Settlement. After January 1, 1992, uncertified corrections officers shall attend the next correctional officer certification course avail- -able it Monroe County. O. Inmate Activities ­.0 7"r,-+_e activities shall be increased at all facilities. -he pasties recc:ni 2 that the activities of Alcoholics and Narcctics Anonymous are beneficial to the inmate LDtu1at on. Defendants shall continue their cooperation and active pz.rticipation with these agencies to assist in the provi- sion cf their programs within the jails. 34 100. Once the New Main Jail is operational, defendants shall explore the availability of existing and potential communi- ty resources to provide academic and vocational educational courses to all inmates of all educational and intellectual levels. Defendants shall make maximum use of programs available through local community resources. At least one employee in each detention facility shall act as liaison between the facility and r the community agencies that offer programs and services. Defen- dants shall comply with the Educational Rights of the Handicapped Act, P.L. 94-142. When the new Main Jail is operational, the defendants shall employ a full-time inmate activities coordinator to implement this and other related provisions. P. Religious Programminci 101. The parties recognize that opportunities for religious worship, instruction and counseling may be extremely beneficial for inmates. The Defendants agree to continue their practice of appointing a Chaplain for the existing Main Jail and cooperating with qualified members of the clergy in providing religious programs. The Defendants agree to continue their practice of appoiTti. g a Chapiai- at the New Main Jail and cooperating with y� y wE.d T,,ism]=s ^f zlf e clergy in providing rel gious p?"og?_"anis =_uding conari1nal worship, instruction, counseling, and the rece3v ::g of sa--raments, consistent with available space, securi- ty needs, and classifica:ion. Further, the Defendants agree to continue to make available to the inmates a list of qualified members of the clergy or lay persons who have expressed an 35 interest in ministering to the needs of the inmates. The Defen- dants agree to make good faith efforts to find qualified clergy or lay persons to minister to any bona fide denominational preference expressed by an inmate. Q. Visitation 102. Each of the two visitation booths at the Main Jail shall be partitioned'with transparent floor to ceiling privacy screens thereby increasing the sense of privacy for visitors and inmates, consistent with security within thirty (30) days of the approval of this Agreement. 103. Visitation shall be available four (4) days a week at the Main Jail in Key West. Visits shall be at least thirty (30) minutes long. Visitation periods shall be permitted so that each inmate in general population has the opportunity for at least two (2) hours of visitation each week. When the New Main Jail opens, visitation shall be conducted five (5) days a week. At least one visitation day shall be either Saturday or Sunday, and on at least one weekday visitation day, visitation shall be conducted dW;ring evening hours. 0 . -ontact visitation rust be requested in writing. Such noust `a directed tc the Officer -in -charge who will. a wFrovu ^r re; ect the request. Approval or rej ecticr. of such a rec uest shall be based on the inmate's classification and behav- 1 �r 3b 105. Special arrangements shall be made to increase visita- tion time for inmates with visitors who travel more than fifty (50) miles for the visit. R. Access to the Courts 106. Inmates shall be provided access to a free (no long distance tolls) telephone line to call their public defender, court -appointed criminal defense attorney, and Pretrial Services. 107. The Sheriff of Monroe County shall provide an inmate of any Monroe County Detention Facility who is not represented by counsel physical access to legal materials contained in the Jail, the Monroe County Law Library or a law library outside the Jail three times per week, four hours per visit, for a total of twelve hours per week. This law library visitation limit of twelve hours per week shall be extended if the inmate can demonstrate that he or she has legal deadlines which can not otherwise be met in twelve hours per week. This provision pertains equally to civil and criminal matters. 108. The Sheriff may require a written request from an n�na�c who desires access to legal materials. Copies of the 'v lase, avlI[i5 shall :::aintained in acccruance with the = ... chives as . inmates F'?: are illiterate, non-English s eakir' or handicapped shall. be assisted in completing the - ec nest forns. inmates who are not trained in the law, illi ter- _ite or nor. -English speaking, or handicapped may be assisted in their legal research by other inmates on a volunteer basis. 37 109. No inmate shall be required to wait more than two working days between the time of the submission of his or her request and being allowed physical access to the law library. "Working days" are defined as Monday through Friday. Legal holidays recognized by the federal government or the State of Florida are excluded from the definition of "working days.." 110. An inmate'who is without counsel and who is actively in trial in any court of the Sixteenth Judicial Circuit in and for Monroe County, Florida or the United District Court for the Southern District of Florida shall be permitted daily access to legal materials for at least four (4) hours per day. "Actively in trial" for this purpose shall mean that period commencing when a judge calls a case for trial on the trial docket and all parties have announced themselves ready to proceed, or the court has ordered that the trial shall proceed, until the rendition of the verdict or the close of testimony in a non -jury trial. ill. The Sheriff shall place the legal reference materials listed below in the Key West Jail within ninety (90) days of the of -his order; ;a) Southern Reporter, Second Edition (Florida Cases; tzo_m volume 300 until the present; ,, n t set C FloridaStatutes a tc A c1���n�, f � da Arnot• .., !�1 A current set of. Florida statutes; (d) Shepard's Florida Citations; (e) A set of Florida Jurisprudence, Second Edition; (f) Florida Criminal and Civil Rules of Procedure; (g) Federal Rules of Criminal and Civil Procedure; 38 (h) Florida Rules of Court - Federal; (i) Black's Law Dictionary, latest edition; (j) Monroe County Code; (k) The Code of the City of Key West; (1) A treatise on the Fourth Amendment to the United States Constitution; (m) A treatise on Florida criminal trial practice; and (n) Chapter 33-8, Florida Administrative Code. Until all publications cited above are installed for use in the Key West Jail, the Sheriff shall take inmates to the Monroe county Law Library,. 112. If a pro se. inmate needs any publication required by Rule 33-8.009(10), Florida Administrative Code (1991) or any federal material which is not in any Monroe County Jail facili- ty's Law Library but is available in the Monroe County Law Library, he or she shall be taken to the Monroe County Law Library or some other outside law library containing the needed publication. 113. All legal materials shall be kept current. 1.14. Pens, paper, and legal mail postage shall be available -�o _ —ia7-es, 1'f a r rz) szY innate has enough funds in their _.L.e a c_.. .nt 4 o pay '`c r peril, pzper, legal mail postage an l phctccor4 e;, the actual cost c`_ sane shall be deducted from their ar]i-at-e account. 1-f the nr.o se inmate has no Funds in his or her inmate account and the inmate has been declared indigent by any judge of competent jurisdiction, they shall be provided with a 39 reasonable quantity of pens, paper, and legal mail postage by the Sheriff. 115. The Sheriff shall have all publications required by Rule 33-8.009(10), Florida Administrative Code (1991) in the Monroe County Jail Facility presently planned for Stock Island. In the event the Stock Island Jail is not constructed and the Key West Jail is instead'renovated, the Sheriff shall have all publications required by Rule 33-8.009(10), Florida Administra- tive Code (1991) in the renovated Jail. 116. Any policy requiring a pro se inmate to obtain a court order prior to going to the law library is prohibited. s. Inmate work Assignments 117. The parties recognize that work opportunities are severely limited at the present Main Jail. Nevertheless, the defendants agree to make every effort to increase the number of work assignments, for both sentenced and non -sentenced inmates. 118. At the Planation Key and Marathon Jails, and the New liazn ail when it becomes operational, the defendants agree to reasonable provisions fo� work opportunities to sentenced V74 rein six (6) nonths of the date of the approval of this This paragraph stall not require that work opportur.i- t-es ran offered when an inmate's behavior or classification in -he ;-ea 1o:•+ahle judgment of the officer -in -charge, does not warrant the provision of a work opportunity. In the event the defandants can not provide a for work opportunity to a sentenced inmate willing to work and not otherwise deemed unfit to work by 40 the officer -in -charge, the Sheriff shall provide an alternative method which will enable to inmate to receive a full measure of work gaintime. Non -sentenced inmates will be offered the oppor- tunity to work if they so desire on the same conditions and subject to the same restrictions as apply to sentenced inmates. T. Clothnq supply __and Issue 119. All inmatbs shall be provided with adequate clothing and sanitation items. If an inmate is booked into a facility without tee shirts, underpants, and shoes, and is unable to purchase or acquire same within twenty-four (24) hours of first appearance, the facility shall provide the following: (a) two underpants; (b) one bra (non-metal support), if requested, females only; (c) two inmate uniforms; and (d) one pair of shower shoes. inmates who work shall be issued clothing and shoes appro- priate For the type of work and prevailing weather. When an .urns in set of clothing to be laundered, a clean set of shall be i.m_mediawe l y issued. Al? i mates shall be provided with the followin;: a two to��els; ;b) one (1) mattress; (C) one (1) blanket; (d) two (2) sheets; (e) one (1) pillow cover; 41 (f) one (1) pillow (g) soap; (h) toothbrush and toothpaste; (i) razor and shaving cream; and (7) comb. U. Medical 121. An inmatels medical record (or up-to-date copies) shall be kept at the facility housing the inmate. Physician progress notes and structured management plans shall be kept up- to-date. Paperwork shall be properly filed. 122. Standard operating procedures (or nurse treatment protocols) shall be in writing and available at all facilities. The operating procedure will cover, but not necessarily be limited to the following; (a) receiving screening; (b) physical examination; (c) necessary medical, dental and mental health services; (d) emergency, medical and dental services. - of next of kin in cases of serious ill- . 9 •rccsdures cat -ion procedures under medical supervision; a n:! ,i. ccntro' ci pharmaceuticals. ;,t a ninimura, 'Che protocols shall address chronic medical prob- lems, including hypertension, chronic pulmonary disease, bronchi- 42 al asthma, cardiac disease, seizure disorders, diabetes me'litus, INH prophylaxis for recent PPD skin test converters •rho are judged at risk for developing active tuberculosis, etc. The procedures shall require initial evaluation and specific periodic follow-up, pertinent medical history, including physical status, documentation of effect of medication and treatment, and utiliz- ing objective observations and ancillary tests as appropriate, to optimize medical management and delay or prevent complications. Medical personnel shall be familiar with the procedures. Each medical care provider shall be provided a copy of the standard operating procedures. Medical personnel shall sign a transmittal sheet signifying that they have received a copy of the proce- dures, the procedures have been read and they are understood. 1.23. The medical intake screening procedure performed during admission shall be done by personnel trained in identify- ing medical problems which require special housing and/or immedi- ate medical attention. 124. Daily sick call, at regular hours, shall be conducted at all facilities. 125. There shall be at least one (1) full-ti.<<e registered empl dyed. at the Main -ail. There shall also be at 1F�:a = : one i.:irensed. practical nurse ( LPN) at the Main jail twenty - fours '24) hours a day, seven (7) days a week. Any unfilled position: shall be filled within three (3) months of the entry of an order approving this Agreement. 43 126. There shall be at least one (1) full-time registered nurse (RN) employed for the Plantation Key and Marathon Jails. 127. The Jail Physician's contract shall be in writing. The Jail Physician shall determine the number of hours that are necessary to meet his responsibilities under this agreement. The defendants shall increase: the Jail Physician's hours to ensure he meets the demand for'his services and the responsibilities of the position. The Jail Physician shall be responsible for the overall delivery and coordination of all medical, dental and mental health care services at all Monroe County Jail facilities. The Jail Physician shall periodically inspect the delivery of medical services at Plantation Key and Marathon. This periodic inspection shall be done no less than once every three (3) months and shall be documented in writing. The Jail Physician shall tour and inspection the entire Main Jail once a month to review nurse -administered triage and health care, including sick call, infirmary care, and emergency care. This tour and inspection shall be documented in writing. 128. Each inmate in solitary confinement shall be seen by a nurse E, yeast once each day. This daily visit shall be docu- yen e•d as t-o the date and time of each visit in the inmate's in'A IC eCC'"d . 1.9. The Jail Physician shall initial his review of all laboratory and x-ray reports, plus all other special test results such as EKG's and EEG's, and written consultation reports. 44 130. The Jail Physician shall initiate selected elements of a quality assurance program, based on perceived or potential deficiencies in the Jail's health care program. All .inmate deaths in the Jail (or in a hospital if sent directly from the Jail) shall be subject to critical physician review, with re- quired written evaluation in each instance. 131. Outside consultation logs shall be initiated immedi- ately at all facilities. The logs will track the consultation process from the Jail Physician's or health care practitioner's request for consultation services all the way through to docu- mented implementation of consultant recommendations, or written reasons for their rejection. 132. An emergency room log shall be kept at all facilities. 133. The parties .recognize that there is not room in the existing Main Jail for a female infirmary. If a female inmate is in need of infirmary care, she shall be hospitalized or provided segregated housing, as medically necessary. If a female inmate in need of infirmary care is placed in segregated housing, she shall be regularly seen by a member of the medical staff. 1 34. separate medical records, including physician admis-- i. n notes, progress notes as indicated, and discharge notes, stall be required for infirmary patients at the Main Jail. The Jail Physician shall supervise and review nurse--adninis-ered infirmary care. A nurse shall conduct overnight observation of inf:irmary p tients. 45 135. The number of inmates housed in the infirmary at the present Main Jail shall be limited to six (6). Whenever the number of inmates in need of infirmary care exceeds six, a secondary infirmary area shall be made available. Only inmates in need of infirmary care shall be housed in the infirmary. 136. The New Main Jail infirmaries shall be available to both male and female'inmates. Any inmate in need of infirmary care shall be housed in the infirmary, in segregated housing, or hospitalized, depending upon medical necessity. Sight and normal sound separation shall be maintained between male and female inmates housed in the infirmary. Sound separation is defined as restricting normal verbal communications. 137. A nurse shall see each inmate that fills out a medical request slip the day the slip is completed or within twenty-four (24) hours if the request is not urgent. Nurses shall take care to ensure that an inmate is not unreasonably denied access to the Jail Physician. Written RN treatment protocols shall provide specific circumstances to indicate referral of an inmate by the nurse to the Jail Physician, including repetitive sick call regu,L�sts for the same unresolved problem or repetitive requests Dv an .inmate to sew_ t--ie Jail Physician. The Jail Physician shall supervise and review nurse -administered triage and health care, including sick call, infirmary care, and emergency care. :138. All correctional staff shall be CPR certified. !39. Daily sick call shall be available at the Planation Key and Marathon jails. The defendants agree to explore the 46 possibility of contracting with the hospitals in Planation Key and Marathon for the provision of health services to the inmates in the branch jails. 140. A health appraisal and physical examination shall be conducted within fourteen (14) days of admission by the Jail Physician or qualified health care personnel designated by the Jail Physician, provided, however, that of the inmate's health care records contain written records of an equivalent health ap- praisal within the previous ninety (90) days, the Jail Physician or his designee shall determine whether a new health appraisal is required. Qualified health care personnel are defined as a physicians' assistant (PA), an advanced registered nurse practi- tioner (ARNP), a registered nurse (RN), or a licensed practical nurse (LPN) with advanced training in the area physical examina- tion and assessment. Prior to an LPN conducting health apprais- als and physical examinations, there shall be written documenta- tion in the LPN's personnel record demonstrating the LPN has received advanced training in health appraisals and physical exam "nations and that the Jail Physician has certified in writing thr16 hay:. been d2:�on. strated wo the Uall Physician's the appraisal an'" physical examination sha1 i _,o":per at d n-4nimu-n the following: a; review of intake screening forms; (b) collection of additional data to complete the medical, dental, psychiatric and immunization histories; 47 (c) laboratory and diagnostic tests as determined necessary by the facility physician to detect communicable disease, includ- ing venereal diseases and tuberculosis; (d) recording of height, weight, pulse, blood pressure and temperature; (e) other tests and examinations as appropriate; (f) medical exdmination with comments about mental and dental status. Medical examination of females shall include a gynecological assessment; (g) review of the results of the medical examination, tests and identification of problems by a physician; (h) initiation of therapy when appropriate. The extent of health appraisal, including the medical examination, shall be defined by the facility physician, but should include at least the items listed above; (i) the form used for the health appraisal shall be ap- proved by the facility physician; and (j) the facility policy and procedure requiring a health appraisal shall be contained in the standard operating procedure t ... medical section. 142. Copies oL an, inmate's medical record shalt be sent to '--he F..o.rida Department of Corrections or other correctional facil._Y upon transfer. 143. One (1) year prior to the opening of the New Main .pail, the Jail Physician and the Sheriff shall submit a written "correctional medical care staffing plan" for the New Main Jail 48 to Plaintiffs' Counsel for review. The "correctional medical care staffing plan" shall provide for the anticipated staff needed for the New Main Jail in the areas of medical, dental, mental health and psychological care. Plaintiffs' Counsel shall have thirty (30) days to review the plan. If the plan is satis- factory to Plaintiffs' Counsel, it shall be implemented by the Sheriff. If Plaintiffs' Counsel disagrees with all or any aspect of the staffing plan, they shall communicate their objections in writing to the Defendants, who shall respond in writing to Plaintiffs' Counsel within thirty (30) days from receipt. If the parties are unable, after good faith discussion and negotiation, to agree upon a correctional medical care staffing plan within sixty (60) days from the date of submission to Plaintiffs' Counsel, then an expert in correctional medical care staffing agreed upon by the parties shall be consulted to resolve the dispute. The parties agree to abide by the decision of the expert with regard to any disputed issues. In the event the parties are unable to agree upon an expert in correctional medical staffing, Plaintiffs' Counsel shall pick an expert, the S�'ierif­l stall ;.sick an expert, and the two (2) experts shall pick 4 .ir exe_ , . The three ; 3 experts shall pick then devise a corracctrcn--1 medical care staffing plan. The cost of devising ,_-te correctional radical care staffing plan shall be borne by the County. Once the correctional medical care staffing plan is determined, the County shall budget for the positions needed. At least one hundred and twenty (120) days prior to the anticipated M opening of the New Main Jail, the Sheriff shall begin advertising to fill any new positions called for in the correctional medical care staffing plan. V. Mental Health 144. Written mental health care guidelines or protocols shall be immediately established at all facilities. They shall include at a minimum'guidelines for screening, triage, suicide prevention and suicide watch. The general reference to the mental health guidelines in the Jail Policy and Procedure Manual shall be made more specific. 145. The four (4) isolation cells at the Plantation Key and Marathon Jails shall be properly retrofitted for housing inmates that are suicidal or acutely disturbed. The metal beds shall be removed. They shall be replaced with slightly raised, solid, concrete forms in the shape of a bed. Fire -proof, non -tearable mattresses shall be placed on the concrete bed form. Places where inmates with blankets, sheets, pillowcases, etc., might attempt to hang themselves shall be immediately modified and corrected. The defendants shall enter into a contract to retro- t t:ae isolation cells to house suicidal inmates within thirty ;3 days of .the order approving this Agreement. The contract s!.a_'J ;,e completed within sixty (50) days of the order approving this Agreement, 146. Paper clothes, or other appropriate clothing, and paper sheets shall be purchased and used for suicidal inmates. 50 147. The Sheriff shall initiate a suicide prevention program within thirty (30) days of the signing of the order approving this Agreement. Correctional officers and health care staff shall receive, within ninety (90) days of the signing of the order approving this Agreement, a training program on how to identify and supervise suicidal inmates. Thereafter, a regular in-house training program on how to,identify and house suicidal inmates shall be conducted twice a year for all jail personnel. This requirement shall be in addition to the correctional offi- cer's certification training program. 148. All correctional staff involved in the intake and booking process shall be trained to identify inmates with mental health and medical problems. 149. improved access to mental health care shall be under- taken immediately. The written contract for services with a psychiatrist shall continue to provide for a psychiatrist to come to the Main Jail a minimum of four (4) hours per week. In the event that the psychiatrist is unable to administer to the mental health care needs of the inmates in four (4) hours per week, his =tract sA:all be extended to meet the need. 1'he psychiatrist serail annually review with the Jail Physician and the Sheriff in writing h,.Ls estimation of the number of hours per week Necessary to meet his responsibilities. The defendants shall increase the psychiatrist's hours to ensure he meets the demand for his ser-,rices and the responsibilities of the position. The psychia- trist shall review the results of medication of all inmates on 51 psychotropic medication at least once every thirty (30) days with monitoring by blood drug levels as appropriate. This review shall be documented in the inmate's medical records. The renewal of psychotropic medication shall be prescribed every thirty (30) days by the psychiatrist. The Jail Physician, the psychiatrist, or the psychologist shall evaluate all suicidal inmates within twenty-four (24) houts. No inmate who is placed on a suicide watch shall be removed from same except upon the direction of a licensed physician or a psychologist. 150. Psychologist services at the Main Jail shall be no less than four (4) hours per week. In the event that the psy- chologist is unable to administer to the mental health care needs of the inmates in four (4) hours per week, his contract shall be extended to meet the need. The psychologist shall annually review with the Jail Physician and the Sheriff in writing his estimation of the number of hours per week necessary to meet his responsibilities. The defendants shall increase the psycholo- gist's hours to ensure he meets the demand for his services and the responsibilities of the position. The psychologist shall dacument his work in the innate's medical records. The psycholo- ::jist,all ccardinate his activities with the psychiatrist. '51. Psychiatrist and Psychologist services shall be av a lade to all inmates. W. Dental L52. Emergency Dental care shall be available to all inmates in need of dental care, without unnecessary delay. 52 153. In addition to emergency dental care, inmates shall be provided such additional dental care as is necessary to maintain the inmate's dental health in the same condition as when the inmate entered a Monroe County jail facility. 154. Written protocols for interim management of dental pain and triage of dental emergencies shall be immediately devel- oped for health care personnel. Correctional officers shall refer inmates with dental complaints to health care personnel for triage and disposition. 155. The defendants agree to enter into contracts with one or more dentists for the provision of emergency dental care as needed. Pain attributable to dental problems, and not alleviated by available medications, shall be deemed a dental emergency. 156. Non -emergency dental care shall be available within three (3) weeks of the complaint. 157. Dental services will be designed to avoid the unneces- sary extraction of teeth. 153. Nothing in this Agreement prevents the defendants from see)�i.ng reimbursement for the cost of health services as provided _% lotJda Statute y 951.032. X. Pharmacy w59. Delays in the provision of prescription medication shad ?De eliminated. Prescriptions of an emergency nature shall be filed without delay. In the event prescriptions of an emergency nature are not available in the community where the correctional facility is located, they shall be ordered on an 53 emergency and expedited basis, and filled as soon as they are received. Other non -emergency prescriptions shall be filled within twelve (12) hours. In the event other non -emergency prescriptions are not available in the community where the correctional facility is located, they shall be ordered at once, and filled as soon as they are received. 160. Defendantev shall implement a system of periodic inventory checks of drugs in the emergency box at Plantation Key and Marathon Jails, with log entry verification. 161. A program to eliminate the theft of drugs shall be immediately instituted. Y. Mai-1 and -Communications 162. Mail shall be handled as follows: (a) Incoming Mail: i. all incoming mail, other than privileged mail, may be opened and inspected for contraband, cash, checks or money orders. The inmate shall receive a receipt for all cash, checks, or money orders received in. incoming mail and such funds shall be deposited in the inmate's account. Non -legal mail_ MLy be read only when the jail has reason to be- lisve that the mail may contain information relat- ed to an escape attempt, threats of physical harm or criminal activity, plans for activities in violation of jail rules, or if the letter is in code or contains information which, if eommunieat- 54 ed, would create a clear and present danger of violence or physical harm to a human being. If, for any reason, an inmate's correspondence is withheld, the inmate shall be informed in writing of the reason such action has been necessary. Incoming mail will be distributed on each day that it is'delivered by the postal service. ii. privileged mail is letters from lawyers, officials of the jail, government officials, the media, and other legal organization such as the ACLU, NAACP, legal services, and all other human and civil rights organizations. Incoming privileged mail shall not be opened for inspection unless there is a reasonable suspicion to believe that the letter contains cash, checks, money orders or physical contraband. In such cases, the incoming mail shall be opened and inspected in the presence of the inmate. .Privileged mail shall not be read or withheld from an inmate. �a Ju `gc .ng Ma -;_I: r igent in ates will be supplied zed three (3 stamped envelopes, three (3) pieces of paper, and one (1) pen or pencil once a week. ii. outgoing :nail may be sealed, and shall not be interfered with unless it is suspected the letters contain the following: threats of physical harm to 55 persons, threats of criminal activity, plans to escape, plans to violate the jail rules, threats of blackmail, writing in code, or contraband items. iii. privileged mail should be marked "PRIVILEGED" or "LAWYER -CLIENT" on the front of the envelope by the inmate and the envelope can then be sealed by the inmate. Outgoing privileged mail shall not be opened, but it may be held for a reasonable time not to exceed seventy-two (72) hours pending veri- fication that it is properly addressed to a person or agency referred to above in subpart a.ii. iv. all non -privileged outgoing mail must be put into envelopes properly sealed, with the correct post- age affixed. If for any reason an inmate's outgo- ing mail is not sent, he/she shall be informed of this fact and the reason why it was not sent. There is no limit on the number of letters a non - indigent inmate may send out. Z. Inmate Handbook 63. mho sha1.L orovide each lnrn:ate with an Inmate Hrand b oy}}: afte. booking in the jail. The Handbook shall provide she .*-::mate with information on the rules and regulations of the jail. The rues contained in the Handbook shall apply to all inmates. Their purpose shall be to ensure the safe custody, decent .living conditions, fair treatment, and protection of the 56 inmate's constitutional rights. The Handbook shall be available in English and Spanish. The Handbook shall be consistent with constitutional and legal principles, this Agreement, and Chapter 33-8, Florida Administrative Code. AA. DOC AAnUA1 a ec i ns 164. The defendants shall promptly correct all aggravated and citable violations found in the Florida Department of Correc- tions' annual inspection reports, performed in compliance with Chapter 33-8, Florida Administrative Code. SECTION VII. PRIVATIZATI0E 165. The defendants will insure that any Jail operated under contract with Monroe County or the Sheriff of Monroe County will provide inmates with the same rights and privileges afforded inmates in the custody of Monroe County or the Sheriff of Monroe - County. SECTION VIII. CLOSURE OF MAIN -JAIL AND CONSTRUCTION OF NEW JAIL 1(;6. The New Main Jail shall be completed on or about the s_F; `Ln of !993, barring any unforeseen circu;Lstances. 1.67. Once the New Main Fail is opened, the Main Jail shall be closed and the Department of Corrections notified. The Texas Jail f-lellblocks #s 1, 2, 3, 4, and the Four Man Security Cells) shall be closed and never reopened. This shall not preclude the establishment of daytime holding cells for use by those inmates appearing in court so long as they fully meet all of the re- 57 quirements of Florida Administrative Code Chapter 33-8. The present Main Jail, excepting the Texas Jail section, may be reopened and used as long as it fully meets all of the require- ments of Florida Administrative Code Chapter 33-8. SECTION IX. CONTINUING ROLE OF PLAINTIFF61_9OUNSEL AND SPECIAL MASTER 168. The parties agree that Plaintiffs' Counsel, the Special Master or their successors shall, beginning immediately upon approval of this Agreement and continuing for a period of twenty (20) months after opening of the New Main Jail, evaluate defendants' implementation and compliance with this Agreement. Defendants shall, in their official capacity, pay the Special Master's fees and expenses to carry out his duties under this Agreement. The Special Master will be responsible for evaluating defendants' implementation and enforcement of and compliance with this Agreement. Nothing in this provision precludes Plaintiffs' Counsel from also evaluating defendants' implementation, enforce- ment of and compliance with this Agreement. .69. The Special Master and Plaintiffs' Counsel shall have i.inli-aited access, with reasonable notice, to all public or client records, files and papers maintained by the jail facilities. Upon request, the Special Master shall be briefed twice annually by defendants or their designees as to the conditions of the jams and the status of their compliance with this Agreement. Plaintiffs' Counsel shall be invited to attend any briefing sessions scheduled. 58 170. Plaintiffs' Counsel and the Special Master shall be allowed reasonable access to the Jails upon request to the Sheriff, or in the Sheriff's absence, the officer -in -charge. Plaintiffs' Counsel and the Special Master shall be accompanied by a staff member designated by the Sheriff or the officer -in - charge. 171. The Special Master shall be authorized to conduct interviews with any staff member or employee of the Sheriff's corrections staff concerning jail conditions at any time. Plaintiffs' Counsel may be authorized by defendants or their designees to conduct interviews with any staff member or employee of the Sheriff's corrections staff concerning jail conditions provided Sheriff's counsel has approved the interview. Defen- dants recognize the need for and will implement procedures to insure that the Special Master and Plaintiffs' Counsel are permitted to speak privately with inmates. 172. The defendants shall file reports to the Court and the Special Master with copies to all Plaintiffs' Counsel at the end of sixty (60), one hundred and twenty (120), and one hundred and &4-gInty ,130) days from the date of the order approving this Agreer5t:;t, certifying the actions and steps taken to .implement this Agreement. Each report shall address each paragraph of this Agreement separately. Each report shall detail the implementa- tion of this Agreement and, to the extent that full implemen- tation has not been achieved, detail the reasons why and provide 59 a timetable for full implementation. The defendants may provide any other information they deem relevant and useful. 173. The defendants shall submit bi-weekly reports to the special Master with a copy to Plaintiffs' Counsel at the Florida Justice Institute, reflecting the population count in each of the Monroe County Jails for each day for the next one hundred and eighty (180) days after the order approving this Agreement is entered. 174. No further reporting shall be required unless the parties by stipulation or the Court by order extends the monitor- ing period. 175. The access provided Plaintiffs' Counsel and the authority and access provided the Special Master shall expire at the end of the twentieth (loth) month following the date the New Main Jail becomes operational, provided, however, that such authority and access may be extended by agreement of the parties or upon order of the Court if the Court finds that a continuation of such authority and access is appropriate to ensure implementa- tion of and compliance with this Agreement. 17!> Before any alleged violation of this Agreement is „•-��r* before this Court, the parties shall attempt to resolve the problen among themselves by good faith, face-to-face negotia- t-ions. -77. Plaintiffs' Counsel may thereafter at any time peti- tion th( Court for enforcement of this Agreement and may present all relevant evidence to prove that the defendants are not W complying with the terms of this Agreement, or the Court's orders. SECTION X. ADD TIONAL COV$NANTS 178. Defendants agree that they and their successors in office shall fully comply with and enforce this Agreement. 179. Neither party will appeal the order attached hereto as Exhibit B if such Order is entered by the Court. If the Court does not enter the order as attached as Exhibit B, this Agreement is null and void. SECTION XI. CONTINUED EFFECTIVENESS AW REi`ENTION OF .7URISDICTIC H 130. Defendants' obligations under this Agreement shall be ongoing and shall survive the dissolution of the role of the Special. Master. SECTION XII. COSTS. EXPENSES AND ATTORNEYS' FEES 181. The parties agree that plaintiffs are the prevailing parties in this action and, as such, are entitled under 42 U.S.C. n i Gu;a i c reasonable attorneys' fees: costs and expenses Or their wook until such time me as the Court approves this Stipulation and Agreerent of Settlement and enters the attached order (Exhib- it D) . Plaintiffs' ;:s-unzel shall submit appropriate papers to the defe:n,.'.ants' counsel within thirty (30) days of the Court's en`ry of a judgment_ approving this Agreement. Counsel for the parties shall thereafter have sixty (60) clays ;:o attempt to 61 settle all attorneys' fees, costs, and expenses. If the matter is not settled within the sixty (60) day time frame, plaintiffs Counsel shall submit appropriate papers to the Court. The aforementioned time frame for attempting to settle the fees and costs may be extended by the filing with the Court of a Joint Stipulation of Extension. SECTION $III. EFFECTIVENESS OF AGREEMENT 182. This Agreement shall be effective immediately upon entry of an order of Court approving it. In the event that the Couri-_ declines to approve this Agreement or any portion herein, this Agreement shall be null and void and w-f.thout prejudice to the parties' rights. 183. Attached hereto and made a part of this Agreement is a certified copy of the minutes of the County Commission held on 1991 wherein the Monroe County Commission approved this Agreement. SECTION SIV. DISMISSAL OF DEFE"ANTS Ix? THET—R_ INDIVIDUAL CAPACITIES ,84 ;,upon the app--oval of this agreement by the court the D.2IL-_ndan-_ , GERRY RITA, FRANK ORi`A, WADE ODObi, EiDWARID JOHNSON, ''114ER LOUI.S EMERSON ALLEN, DON SCHLOSSER, CURT BLAIR, RICHARD KRR, �"_ER.R'. H ERNANDEZ, JR. , GEORGE E. DOLE —UAL, J. ALLISON DeFOOR, Il, and County Co;rmissionerzs WILHELMINA HARVEY, DOUGLAS JONES, JACK LONDON, EARL CHEAL, and JOHN STORMONT, and Sheriff RICf-ARD 62 D. ROTH, in their individual capacities but not in their capacity as office holders, shall be dismissed from this lawsuit. SECTION %V. ENTIRE AGREEMENT, MERGER 185. This Agreement contains the entire agreement between the parties. All prior negotiations, discussions and agreements are merged into this Agreement. STIPULATED AND AGREED to this Z -7 day of = - �1991. . Bruce Rogow, Esq. Florida Bar No. 2441 S.W. 28th Avenue Ft. Lauderdale, FL 33312 (305) 522-2300 r� Randall C. Berg, Jr., 9sq. Florida Bar No. 318371 FLORIDA JUSTICE INSTITUTE, INC. 4868 Southeast Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2309 (.305) 358-2081 1 eter M. iegel, Esq. Florida Bar No. 227862 FLORIDA JUSTICE INSTITUTE, INC 4868 Southeast Financial Center 63 Julius F. Parker, Jr., Esq. Florida Bar No. P.O. Box 669 Tallahassee, FL 32302 (904) 222-3730 Attorney for Defendants, Sheriff of Monroe County, Gerry P. Pita, Frank Orta, Wade Odom, Edward Johnson, Elmer L. Louis, and Emerson Allen Mark Willis, Esq. Florida Bar No. 3 16J General Counsel Monroe County Sheriffs Office 200 South Biscayne Boulevard Miami, Florida 33131-2309 (305) 358-2081 Attorneys for Plaintiffs Randy Ludacer, Esq. Florida Bar No. Monroe County Attorney 310 Fleming Street, Room 29 Key West, FL 33040 (305) 292-3470 Attorney for Defendants Don Schloesser, Curt Blair, Richard A. Kerr, Jerry Hernandez, Jr., George E. Dolezal, Wilhelznina Harvey, Douglas Jones, Jack London, Earl Cheal, and John Stormont 64 530 Whitehead Street Key West, FL 33040 (800) 273-2677 Attorney for Defendant, Sheriff of Monroe County � da, - z x � Richard Roth Sheriff of Monroe County 530 Whitehead Street Key West, FL 33040 L 1 1. Wilhelmina G. Harvey " Mayor on behalf of Monroe County and the County Commission 310 Fleming Street Key West, FL 33040 (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK By December ••T Rule 4-1.7. Conflict of Interest; Current Clients (a) Representing Adverse Interests. Except as provided in subdivision (b), a lawyer shall not represent a client if: (1) the representation of 1 client will be directly adverse to another client; or (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a conflict of interest under subdivision (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent represen- tation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a position adverse to another client when the lawyer represents both clients in the same proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing. (c) Explanation to Clients. When representation of multiple clients in a single matter is undertaken, the consulta- tion shall include explanation of the implications of the common representation and the advantages and risks in- volved. (d) Lawyers Related by Blood or Marriage. A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship. (e) Representation of Insureds. Upon undertaking the representation of an insured client at the expense of the in- surer, a lawyer has a duty to ascertain whether the lawyer will be representing both the insurer and the insured as clients, or only the insured, and to inform both the insured and the insurer regarding the scope of the representation. All other Rules Regulating The Florida Bar related to conflicts of interest apply to the representation as they would in any other situation. Amended July 23, 1992, effective Jan. 1, 1993 (605 So.2d 252); Jan. 23, 2003, effective July 1, 2003 (838 So.2d 1140); March 23, 2006, effective May 22, 2006 (933 So.2d 417). 1011101011I 1 Loyalty to a client Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. Conflicts of interest can arise from the lawyer's responsibilities to another client, a former client or a third person, or from the lawyer's own interests. For specific rules regarding certain conflicts of interest, see rule 4-1.S. For former client conflicts of interest, see rule 4-1.9. For conflicts of interest involving prospective clients, see rule 4-1.IS. For definitions of "informed consent" and "confirmed in writing," see terminology. An impermissible conflict of interest may exist before representation is undertaken, in which event the rep- resentation should be declined. If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation. See rule 4-1.16. Where more than 1 client is involved and the lawyer withdraws because a conflict arises after representation, whether the lawyer may continue to repre- sent any of the clients is determined by rule 4-1.9. As to whether a client -lawyer relationship exists or, hav- ing once been established, is continuing, see comment to rule 4-1.3 and scope. As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that cli- ent's or another client's interests without the affected client's consent. Subdivision (a)(1) expresses that gen- eral rule. Thus, a lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not require consent of the respective clients. Subdivision (a)(1) applies only when the representation of 1 client would be directly adverse to the other and where the lawyer's responsibilities of loyalty and confiden- tiality of the other client might be compromised. Loyalty to a client is also impaired when a lawyer cannot consider, recommend, or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. The conflict in ef- fect forecloses alternatives that would otherwise be available to the client. Subdivision (a)(2) addresses such situations. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasona- bly should be pursued on behalf of the client. Consideration should be given to whether the client wishes to accommodate the other interest involved. Consultation and consent A client may consent to representation notwithstanding a conflict. However, as indicated in subdivision (a)(1) with respect to representation directly adverse to a client and subdivision (a)(2) with respect to mate- rial limitations on representation of a client, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent. When more than 1 client is involved, the question of conflict must be resolved as to each client. Moreover, there may be circumstances where it is impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and 1 of the clients refuses to consent to the disclosure neces- sary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent. Lawyer's interests The lawyer's own interests should not be permitted to have adverse effect on representation of a client. For example, a lawyer's need for income should not lead the lawyer to undertake matters that cannot be handled competently and at a reasonable fee. See rules 4-1.1 and 4-1.5. If the probity of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. A lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed interest. Conflicts in litigation Subdivision (a)(1) prohibits representation of opposing parties in litigation. Simultaneous representation of parties whose interests in litigation may conflict, such as co -plaintiffs or co-defendants, is governed by subdivisions (a), (b) and (c). An impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party, or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defen- dants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than 1 co- defendant. On the other hand, common representation of persons having similar interests is proper if the risk of adverse effect is minimal and the requirements of subdivision (c) are met. Ordinarily, a lawyer may not act as advocate against a client the lawyer represents in some other matter, even if the other matter is wholly unrelated. However, there are circumstances in which a lawyer may act as advocate against a client. For example, a lawyer representing an enterprise with diverse operations may ac- cept employment as an advocate against the enterprise in an unrelated matter if doing so will not adversely affect the lawyer's relationship with the enterprise or conduct of the suit and if both clients consent upon consultation. By the same token, government lawyers in some circumstances may represent government employees in proceedings in which a government agency is the opposing party. The propriety of concurrent representation can depend on the nature of the litigation. For example, a suit charging fraud entails conflict to a degree not involved in a suit for a declaratory judgment concerning statutory interpretation. A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court. Interest of person paying for a lawyer's service A lawyer may be paid from a source other than the client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty to the client. See rule 4-1.8(0. For example, when an insurer and its insured have conflicting interests in a matter arising from a liability insur- ance agreement and the insurer is required to provide special counsel for the insured, the arrangement should assure the special counsel's professional independence. So also, when a corporation and its directors or employees are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors or employees, if the clients consent after consultation and the arrangement ensures the lawyer's professional independence. Other conflict situations Conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determining whether there is potential for adverse effect include the duration and intimacy of the law- yer's relationship with the client or clients involved, the functions being performed by the lawyer, the like- lihood that actual conflict will arise, and the likely prejudice to the client from the conflict if it does arise. The question is often one of proximity and degree. For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamen- tally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference of interest among them. Conflict questions may also arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circum- stances, a conflict of interest may arise. In estate administration the identity of the client may be unclear under the law of some jurisdictions. In Florida, the personal representative is the client rather than the estate or the beneficiaries. The lawyer should make clear the relationship to the parties involved. A lawyer for a corporation or other organization who is also a member of its board of directors should de- termine whether the responsibilities of the 2 roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer's resig- nation from the board, and the possibility of the corporation's obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's independence of professional judgment, the lawyer should not serve as a director. Conflict charged by an opposing party Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the rep- resentation. In litigation, a court may raise the question when there is reason to infer that the lawyer has ne- glected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment. See scope. Family relationships between lawyers Rule 4-1.7(d) applies to related lawyers who are in different firms. Related lawyers in the same firm are also governed by rules 4-1.9 and 4-1.10. The disqualification stated in rule 4-1.7(d) is personal and is not imputed to members of firms with whom the lawyers are associated. Representation of Insureds The unique tripartite relationship of insured, insurer, and lawyer can lead to ambiguity as to whom a lawyer represents. In a particular case, the lawyer may represent only the insured, with the insurer having the status of a non -client third party payor of the lawyer's fees. Alternatively, the lawyer may represent both as dual clients, in the absence of a disqualifying conflict of interest, upon compliance with applicable rules. Estab- lishing clarity as to the role of the lawyer at the inception of the representation avoids misunderstanding that may ethically compromise the lawyer. This is a general duty of every lawyer undertaking representa- tion of a client, which is made specific in this context due to the desire to minimize confusion and inconsis- tent expectations that may arise. Consent confirmed in writing or stated on the record at a hearing Subdivision (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing or clearly stated on the record at a hearing. With regard to being confirmed in writing, such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See terminology. If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See terminology. The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable oppor- tunity to consider the risks and alternatives and to raise questions and concerns. Rather, the writing is re- quired in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing. County Attorney RESOLUTION NO. 017-2005 A RESOLUTION AUTHORIZING THE PAYMENT OF REASONABLE ATTORNEY'S FEES FOR REPRESENTATION OF COUNTY OFFICERS AND EMPLOYEES SUED FOR ACTIONS TAKEN IN THE COURSE AND SCOPE OF THEIR DUTIES WHEN THE OFFICE OF THE COUNTY ATTORNEY CANNOT PROVIDE REPRESENTATION. WHEREAS, the Office of the County Attorney is authorized by Section 2-358(a)(5) of the Monroe County Code to defend all current and former County officers and employees in their personal and official capacities, against any non -criminal action, arising out of acts or omissions undertaken or omitted in the course of the performance of County business, and WHEREAS, the potential for a conflict of interest exists when a County officer or employee is named as a co-defendant or co-respondent with the Board of County Commissioners and/or any other County officer or employee, which might preclude the Office of the County Attorney from representing both parties in the litigation; and WHEREAS, the Rules of Professional Conduct regulating the practice of law in Florida places conditions and limits on the dual representation of two or more clients when a potential conflict exists between the clients; and WHEREAS, Section 111.07 of Florida Statutes authorizes the County to provide an attorney to defend an officer or employee in any civil action arising from a complaint for damages or other injury suffered as a result of any act or omission arising out of and in the scope of his or her duties except for those acts undertaken in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. NOW THEREFORE; BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, THAT Section 1. In the event that the Board, the County Attorney, or a court of competent jurisdiction determines that the Office of County Attorney is precluded by the Rules of Professional Conduct from defending a County officer or employee in a civil action arising out of an act or omission in the course of performing County duties or employment, that the Board of County Commissioners will pay reasonable attorney's fees and costs incurred by the employee in defense of that action within the limits set forth in F.S. 111.07 and as otherwise set forth herein. Section 2. When the Office of the County Attorney is precluded from representing the officer or employee due to a potential or actual conflict of interest, the employee shall retain an attorney of his or her choice. Any and all fees and costs determined by the Board or a court of competent jurisdiction to be in excess of the reasonable prevailing rate for similar services provided by attorneys practicing within Monroe County, Florida, shall be the sole responsibility of the officer or employee who retained that attorney or incurred those costs. Section 3. The Board shall not be liable for any fees and costs that are incurred by an officer or employee when the Rules of Professional Conduct do not prohibit representation of the officer or employee by the Office of County Attorney unless the Board consents prior to the engagement of that attorney. Section 4. Any attorney's fees paid from County funds on behalf of an officer or employee who is found to be personally liable by virtue of acting outside the scope of his or her employment or was acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, may be recovered by the County in a civil action against the officer or employee. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the 19th day of January, 2005. Mayor Spehar Mayor Pro Tern McCoy issioner Nelson inner Neugent t,¢"oner Rice .Attest: DAN O L KOLHAGE, Clerk B epu Clerk jrescay yes -yes-- - es 37P14 yes BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By GGLJ ayor/Chairpe on MONROE COUNTY ATTORNEY A O "FAT B. SHILLINGER, JR. ANT COUNTY ATTORNEY y- s-s BOARD OF COUNTY COMIVIISSIONERS AGENDA ITEM SUMMARY Meeting Date: 10/20/10 - KW Bulk Item: Yes X No Division: CgIM AttomeX Staff Contact: Bob Shillinger, #3470 AGENDA ITEM WORDING: Approval of a resolution authorizing and consenting to the dual representation of Monroe County and the County Administrator Roman Gastesi, Jr. by the County Attorney's Office in the matter ofMonroe County and Roman Gastesi, Jr. v. Stand Up for Animals, Inc., Case No.: CA K 10-1050. ITEM BACKGROUND: The County and the County Administrator filed suit against Stand Up for Animals, Inc. in August. The County Administrator filed suit in his own official capacity so that SUFA's bank accounts could be frozen upon immediate application to the Court. Attorneys representing multiple clients in the same action are required by Rule 4-1.7 of the Rules of Professional Conduct to obtain the written consent of each client to the dual representation. At this time, there are no known conflicts between the County's position in the litigation and that of the County Administrator, nor are any conflicts anticipated or foreseeable. The dual representation authorization is required by the rules so that the County Attorney's office can represent both the County and the Administrator in the action. Mr. Gastesi has agreed to the dual representation. PREVIOUS RELEVANT BOCC ACTION: On August 18, 2010, the Board gave verbal approval for the dual representation. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval. TOTAL COST: N/A INDIRECT COST: n/a BUDGETED: n/a DIFFERENTIAL OF LOCAL PREFERENCE: n/a 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 RESOLUTION NO. - 2010 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, AUTHORIZING AND CONSENTING TO THE DUAL REPRESENTATION BY THE COUNTY ATTORNEY'S OFFICE OF BOTH MONROE COUNTY AND MONROE COUNTY ADMINISTRATOR ROMAN GASTESI, JR. IN THE MATTER OF MONROE COUNTYAND ROMAN GASTESI, JR. V. STAND UP FOR ANIMALS, INC., CA K 10-1050. WHEREAS, Monroe County and County Administrator Roman Gastesi, Jr. brought suit against Stand Up for Animals, Inc. in case number CA K 10-1050; and WHEREAS, the County Attorney's Office has advised that the potential for a conflict of interest between the interests of Monroe County and the County Administrator is remote at most; WHEREAS, Rule 4-1.7 of the Florida Bar's Rules of Professional Conduct permits dual representation of two clients in a matter where the representation does not involve the assertion of a position adverse to one of the clients in the matter; and WHREAS, the Board has previously adopted Resolution 017-2005, which authorizes County Commissioners, officers, and employees to retain and seek reimbursement for private counsel if the County Attorney's Office is unable to represent them in matters arising from their official duties; WHEREAS, the dual representation of both Monroe County and the County Administrator would eliminate the potential need for the County Administrator to retain his own counsel at the expense of the taxpayers; and WHEREAS, the County Administrator has consented to the dual representation by the County Attorney's Office; and WHERAS, the Board has already given verbal authorization for the dual representation at its meeting held on August 18, 2010; and WHEREAS, the Rule 4-1.7 of the Rules of Professional Conduct requires that consent to dual representation be memorialized in writing. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA THAT: 1. The Board consents to the dual representation of Monroe County and County Administrator Roman Gastesi, Jr. by the County Attorney's Office in the matter of Monroe County and Roman Gastesi, Jr. v. Stand Up for Animals, Inc., CA K 10-1050. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular meeting held on October 20, 2010. Mayor Sylvia Murphy Mayor Pro Tem Heather Carruthers Commissioner George Neugent Commissioner Mario Di Gennaro Commissioner Kim Wigington (Seal) ATTEST: DANNY L. KOLHAGE, CLERK mm Deputy Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA IM Mayor Sylvia Murphy MONRUL GUUN I Y A" TO , h AP D FO M: OBERT B. SHILLINGER, JR. CHIEF ASSITANT COUNTY ATTORNEY [Sate _....... �.,. S «_..._. N C UNTY jo'�MONROE KEY WESTLORIDA 33040 (305) 294-4641 Suzanne A. Hutton, County Attorney** Robert B. Shillinger, Chief Assistant County Attorney ** Pedro J. Mercado, Assistant County Attorney ** Susan M. Grimsley, Assistant County Attorney ** Natdeene W. Cassel, Assistant County Attorney Cynthia L. Hall, Assistant County Attorney Christine Limbert Barrows, Assistant County Attorney Derek V. Howard, Assistant County Attorney Lisa Granger, Assistant County Attorney ** Board Certified in City, County & Local GovL Law Mayor Sylvia I Murphy, District 5 Mayor Pro Tem Heather Carruthers, District 3 lam Wigington, District 1 George Neugent, District 2 Mario Di Gennaro, District 4 Office of the County Attorney 1111 121e Street, Suite 408 Key West, FL 33040 (305) 292-3470 — Phone (305) 292-3516 — Fax Authorization for Dual Representation by the Monroe County Attorney's Office I, Roman Gastesi, Jr., County Administrator of Monroe County, hereby authorize the Monroe County Attorney's Office to represent me as counsel in the matter of Monroe County and Roman Gastesi, Jr. v. Stand Up for Animals, Inc., CA K 10-1050. I understand that the Monroe County Attorney's Office also represents Monroe County in the same action. I have been advised that the potential for a conflict of interest between my interests and those of Monroe County is minimal at most. However, if such a conflict does arise, the County Attorney's Office will advise me in writing, explaining the nature of the conflict, before moving to withdraw. In the motion to withdraw, the County Attorney's Office will ask the Court to allow me adequate time to seek new counsel of my own choosing. I further understand that if such a conflict does arise, that the County Attorney's Office may attempt to continue to represent the other defendants after withdrawing from representing me if not prohibited by the Rules of Professional Conduct or order of the Court. I have been further advised that should a conflict of interest arise, I may be entitled to retain counsel of my choosing to be paid at the expense of the County, subject to the limitations set forth in Resolution 017-2005 and F.S. 111.07. With this understanding, I consent to the dual representation by the County Attorney's Office. Roman Gastesi, Jr. date County Administrator Rule 4-1.7. Conflict of Interest; Current Clients (a) Representing Adverse Interests. Except as provided in subdivision (b), a lawyer shall not represent a client if- (1) the representation of 1 client will be directly adverse to another client; or (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a conflict of interest under subdivision (a), a lawyer may represent a client if- (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent represen- tation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a position adverse to another client when the lawyer represents both clients in the same proceeding before a tribunal, and (4) each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing. (c) Explanation to Clients. When representation of multiple clients in a single matter is undertaken, the consulta- tion shall include explanation of the implications of the common representation and the advantages and risksin- volved. (d) Lawyers Related by Blood or Marriage. A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship. (e) Representation of Insureds. Upon undertaking the representation of an insured client at the expense of the in- surer, a lawyer has a duty to ascertain whether the lawyer will be representing both the insurer and the insured as clients, or only the insured, and to inform both the insured and the insurer regarding the scope of the representation. All other Rules Regulating The Florida Bar related to conflicts of interest apply to the representation as they would in any other situation. Amended July 23, 1992, effective Jan. 1, 1993 605 o.2 252); Jan. 23, 2003, effective July 1, 2003 88 o.2d i-40); March 23, 2006, effective May 22, 2006 (231_&.2d 417 COMMENT Loyalty to a client Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. Conflicts of interest can arise from the lawyer's responsibilities to another client, a former client or a third person, or from the lawyer's own interests. For specific rules regarding certain conflicts of interest, see rule 4-1.8. For former client conflicts of interest, see rule 4-1.9. For conflicts of interest involving prospective clients, see rule 4-1.18. For definitions of "informed consent" and "confirmed in writing," see terminology. An impermissible conflict of interest may exist before representation is undertaken, in which event the rep- resentation should be declined. If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation. See rule 4-1.16. Where more than 1 client is involved and the lawyer withdraws because a conflict arises after representation, whether the lawyer may continue to repre- sent any of the clients is determined by rule 4-1.9. As to whether a client -lawyer relationship exists or, hav- ing once been established, is continuing, see comment to rule 4-1.3 and scope. As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that cli- ent's or another client's interests without the affected client's consent. Subdivision (a)(1) expresses that gen- eral rule. Thus, a lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not require consent of the respective clients. Subdivision (a)(1) applies only when the representation of I client would be directly adverse to the other and where the lawyer's responsibilities of loyalty and confiden- tiality of the other client might be compromised. Loyalty to a client is also impaired when a lawyer cannot consider, recommend, or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. The conflict in ef- fect forecloses alternatives that would otherwise be available to the client. Subdivision (a)(2) addresses such situations. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasona- bly should be pursued on behalf of the client. Consideration should be given to whether the client wishes to accommodate the other interest involved. Consultation and consent A client may consent to representation notwithstanding a conflict. However, as indicated in subdivision (a)(1) with respect to representation directly adverse to a client and subdivision (a)(2) with respect to mate- rial limitations on representation of a client, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent. When more than 1 client is involved, the question of conflict must be resolved as to each client. Moreover, there may be circumstances where it is impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and I of the clients refuses to consent to the disclosure neces- sary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent. Lawyer's interests The lawycrs own interests should not be permitted to have adverse effect on representation of a client. For example, a lawyer's need for income should not lead the lawyer to undertake matters that cannot be handled competently and at a reasonable fee. See rules 4-1.1 and 4-1.5. If the probity of a lawyers own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. A lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed interest. Conflicts in litigation Subdivision (a)(1) prohibits representation of opposing parties in litigation. Simultaneous representation of parties whose interests in litigation may conflict, such as co -plaintiffs or co-defendants, is governed by subdivisions (a), (b) and (c). An impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party, or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defen- dants in a criminal case is so grave that ordinarily a lawyershould decline to represent more than 1 co- defendant. On the other hand, common representation of persons having similar interests is proper if the risk of adverse effect is minimal and the requirements of subdivision (c) are met. Ordinarily, a lawyer may not act as advocate against a client the lawyer represents in some other matter, even if the other matter is wholly unrelated. However, there are circumstances in which a lawyer may act as advocate against a client. For example, a lawyer representing an enterprise with diverse operations may ac- cept employment as an advocate against the enterprise in an unrelated matter if doing so will not adversely affect the lawyer's relationship with the enterprise or conduct of the suit and if both clients consent upon consultation. By the same token, government lawyers in some circumstances may represent government employees in proceedings in which a government agency is the opposing party. The propriety of concurrent representation can depend on the nature of the litigation. For example, a suit charging fraud entails conflict to a degree not involved in a suit for a declaratory judgment concerning statutory interpretation. A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court. Interest of person paying for a lawyer's service A lawyer may be paid from a source other than the client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty to the client. See rule 4-1.8(f). For example, when an insurer and its insured have conflicting interests in a matter arising from a liability insur- ance agreement and the insurer is required to provide special counsel for the insured, the arrangement should assure the special counsel's professional independence. So also, when a corporation and its directors or employees are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors or employees, if the clients consent after consultation and the arrangement ensures the lawyer's professional independence. Other conflict situations Conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determining whether there is potential for adverse effect include the duration and intimacy of the law- yer's relationship with the client or clients involved, the functions being performed by the lawyer, the like- lihood that actual conflict will arise, and the likely prejudice to the client from the conflict if it does arise. The question is often one of proximity and degree. For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamen- tally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference of interest among them. Conflict questions may also arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circum- stances, a conflict of interest may arise. In estate administration the identity of the client may be unclear under the law of some jurisdictions. In Florida, the personal representative is the client rather than the estate or the beneficiaries. The lawyer should make clear the relationship to the parties involved. A lawyer for a corporation or other organization who is also a member of its board of directors should de- termine whether the responsibilities of the 2 roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer's resig- nation from the board, and the possibility of the corporation's obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's independence of professional judgment, the lawyer should not serve as a director. Conflict charged by an opposing party Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the rep- resentation. In litigation, a court may raise the question when there is reason to infer that the lawyer has ne- glected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment. See scope. Family relationships between lawyers Rule 4-1.7(d) applies to related lawyers who are in different firms. Related lawyers in the same firm are also governed by rules 4-1.9 and 4-1.10. The disqualification stated in rule 4-1.7(d) is personal and is not imputed to members of firms with whom the lawyers are associated. Representation of Insureds The unique tripartite relationship of insured, insurer, and lawyer can lead to ambiguity as to whom a lawyer represents. In a particular case, the lawyer may represent only the insured, with the insurer having the status of a non -client third party payor of the lawyer's fees. Alternatively, the lawyer may represent both as dual clients, in the absence of a disqualifying conflict of interest, upon compliance with applicable rules. Estab- lishing clarity as to the role of the lawyer at the inception of the representation avoids misunderstanding that may ethically compromise the lawyer. This is a general duty of every lawyer undertaking representa- tion of a client, which is made specific in this context due to the desire to minimize confusion and inconsis- tent expectations that may arise. Consent confirmed in writing or stated on the record at a hearing Subdivision (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing or clearly stated on the record at a hearing. With regard to being confirmed in writing, such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See terminology. If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See terminology. The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable oppor- tunity to consider the risks and alternatives and to raise questions and concerns. Rather, the writing is re- quired in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing. County Attorney RESOLUTION NO. 017-2005 A RESOLUTION AUTHORIZING THE PAYMENT OF REASONABLE ATTORNEY'S FEES FOR REPRESENTATION OF COUNTY OFFICERS AND EMPLOYEES SUED FOR ACTIONS TAKEN IN THE COURSE AND SCOPE OF THEIR DUTIES WHEN THE OFFICE OF THE COUNTY ATTORNEY CANNOT PROVIDE REPRESENTATION. WHEREAS, the Office of the County Attorney is authorized by Section 2-358(a)(5) of the Monroe County Code to defend all current and former County officers and employees in their personal and official capacities, against any non -criminal action, arising out of acts or omissions undertaken or omitted in the course of the performance of County business, and WHEREAS, the potential for a conflict of interest exists when a County officer or employee is named as a co-defendant or co-respondent with the Board of County Commissioners and/or any other County officer or employee, which might preclude the Office of the County Attorney from representing both parties in the litigation; and WHEREAS, the Rules of Professional Conduct regulating the practice of law in Florida places conditions and limits on the dual representation of two or more clients when a potential conflict exists between the clients; and WHEREAS, Section 111.07 of Florida Statutes authorizes the County to provide an attorney to defend an officer or employee in any civil action arising from a complaint for damages or other injury suffered as a result of any act or omission arising out of and in the scope of his or her duties except for those acts undertaken in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. NOW THEREFORE; BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, THAT Section 1. In the event that the Board, the County Attorney, or a court of competent jurisdiction determines that the Office of County Attorney is precluded by the Rules of Professional Conduct from defending a County officer or employee in a civil action arising out of an act or omission in the course of performing County duties or employment, that the Board of County Commissioners will pay reasonable attorney's fees and costs incurred by the employee in defense of that action within the limits set forth in F.S. 111.07 and as otherwise set forth herein. Section 2. When the Office of the County Attorney is precluded from representing the officer or employee due to a potential or actual conflict of interest, the employee shall retain an attorney of his or her choice. Any and all fees and costs determined by the Board or a court of competent jurisdiction to be in excess of the reasonable prevailing rate for similar services provided by attorneys practicing within Monroe County, Florida, shall be the sole responsibility of the officer or employee who retained that attorney or incurred those costs. Section 3. The Board shall not be liable for any fees and costs that are incurred by an officer or employee when the Rules of Professional Conduct do not prohibit representation of the officer or employee by the Office of County Attorney unless the Board consents prior to the engagement of that attorney. Section 4. Any attorney's fees paid from County funds on behalf of an officer or employee who is found to be personally liable by virtue of acting outside the scope of his or her employment or was acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, may be recovered by the County in a civil action against the officer or employee. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the 19th day of January, 2005. Mayor Spehar Mayor Pro Tern McCoy issioner Nelson inner Neugent t,¢"oner Rice .Attest: DAN O L KOLHAGE, Clerk B epu Clerk jrescay yes -yes-- - es 37P14 yes BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By GGLJ ayor/Chairpe on MONROE COUNTY ATTORNEY A O "FAT B. SHILLINGER, JR. ANT COUNTY ATTORNEY y- s-s BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 10/20/10 - KW Bulk Item: Yes X No Division: County Attorney Staff Contact: Bob Shillinger, #3470 AGENDA ITEM WORDING: Approval of a resolution authorizing and consenting to the dual representation of the County, Planning Director Townsely Schwab, and Code Enforcement Director Ronda Norman by the County Attorney's Office and the law firm of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. in the matter of Echols v. Monroe County, Townsley Schwab, Ronda Norman, and Ervin Higgs, Case No.: 1 0-cv- 10085-JEM. ITEM BACKGROUND: John and Gayle Echols filed suit against the County, its Planning and Code Enforcement Directors, and the Property Appraiser for what they claim to be discriminatory treatment in permitting decisions when they owned the subject property in comparison to how the subsequent owners were treated when they sought and obtained development approvals. In 1999, the Echols sought but were denied a ROGO exemption. They sold the Sugarloaf property to Candace Andrus in January of 2004. In September 2008, the Planning Director granted Ms. Andrus a ROGO exemption when she produced evidence in addition to that which the Echols had produced regarding the property's eligibility for an exemption. The County has coverage for these types of claims through the Florida League of Cities. Johnson Anselmo is the carrier counsel for the FLOC. That firm has agreed to represent all three BOCC Defendants with the County Attorney's Office acting as co -counsel for the same three. The Property Appraiser, who was also named as a Defendant, has his own counsel. Discussions were ongoing at agenda deadline regarding whether Johnson, Anselmo and/or the County Attorney's Office would also represent Mr. Higgs. If those issues are resolved prior to the meeting, revised back up and a revised resolution will be submitted. Attorneys representing multiple clients in the same action are required by Rule 4-1.7 of the Rules of Professional Conduct to obtain the written consent of each client to the dual representation. At this time, there are no known conflicts between the County's position and those of Director Schwab and Director Norman; nor are any conflicts anticipated between the positions of any of the County defendants. Without a dual representation authorization, the employees could retain their own attorneys subject to reimbursement by the County under Resolution 017-2005 and F.S. 111.07, which authorize the County to pay for private counsel for Commissioners or employees named as Defendants in lawsuits arising from actions taken during the scope of their official duties if the County Attorney's Office is unable to defend due to a conflict of interest under the Rules of Professional Conduct. Both Mr. Schwab and Ms. Norman have each agreed to the dual representation. In short, the dual representation authorization will eliminate the need for paying for additional counsel for Mr. Schwab and Ms. Norman. PREVIOUS RELEVANT BOCC ACTION: On January 19, 2005, the Board adopted Resolution 017-2005. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval. TOTAL COST: N/A INDIRECT COST: n/a BUDGETED: n/a DIFFERENTIAL OF LOCAL PREFERENCE: n/a 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 RESOLUTION NO. - 2010 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, AUTHORIZING AND CONSENTING TO THE DUAL REPRESENTATION BY THE LAW FIRM OF JOHNSON, ANSELMO, MURDOCK BURKE, PIPER & HOCHMAN, P.A. AND THE COUNTY ATTORNEY' S OFFICE OF MONROE COUNTY AND PLANNING DIRECTOR TOWNSLEY SCHWAB AND CODE ENFORCEMENT DIRECTOR RONDA NORMAN IN THE MATTER OF ECHOLS V. MONROE COUNTY, TOWNSLEYSCHWAB, RONDA NORMAN, AND ERVINHIGGS, CASE NO.: 10-CV 10085-JEM. WHEREAS, Monroe County, County Planning Director Townsley Schwab, and County Code Enforcement Director Ronda Norman have been named as co-defendants in the matter of Echols v. Monroe County, Townley Schwab, Ronda Norman, and Ervin Higgs, Case No.: 10-cv- 10085-JEM; and WHEREAS, the County has coverage for the claims asserted under an insurance policy with the Florida League of Cities; and WHEREAS, the Florida League of Cities has assigned the law firm of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. to represent the County defendants in this case; and WHEREAS, the County Attorney's Office will also be representing the County Defendants as co -counsel in this case; and WHEREAS, the County Attorney's Office has advised that the potential for a conflict of interest between the interests of Monroe County and its Planning and Code Enforcement Directors are minimal; and WHEREAS, Rule 4-1.7 of the Florida Bar's Rules of Professional Conduct permits dual representation of two clients in a matter where the representation does not involve the assertion of a position adverse to one of the clients in the matter; and WHEREAS, the Rule 4-1.7 of the Rules of Professional Conduct requires that consent to dual representation be memorialized in writing; and WHREAS, the Board has previously adopted Resolution 017-2005, which authorizes County Commissioners, officers, and employees to retain and seek reimbursement for private counsel if the County Attorney's Office is unable to represent them in matters arising from their official duties; and WHEREAS, the dual representation of both Monroe County and its Planning and Code Enforcement Directors would eliminate the potential need for the Planning and Code Enforcement Directors to each retain their own counsel at the expense of the taxpayers; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA THAT: 1. The Board consents to the dual representation of Monroe County, Planning Director Townsley Schwab, and Code Enforcement Director Ronda Norman by the law firm of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. and the County Attorney's Office in the matter of Echols v. Monroe County, Townsley Schwab, Ronda Norman, and Ervin Higgs, Case No.: 10-cv-10085-JEM. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular meeting held on October 20, 2010. Mayor Sylvia Murphy Mayor Pro Tem Heather Carruthers Commissioner George Neugent Commissioner Mario Di Gennaro Commissioner Kim Wigington (Seal) ATTEST: DANNY L. KOLHAGE, CLERK BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA BY: BY: Deputy Clerk Mayor Sylvia Murphy MONROE UO UN 1 `( Al IO HNL APPRO RO ER B SHILLINGER,oREY NTY ATTORNEY CHIEF ASSISTANT COy� Date: --1 PA C UNTY jo'�MONROE KEY WESTLORIDA 33040 (305)294-4641 Suzanne A. Hutton, County Attorney" Robert B. ShMinger, Chief Assistant County Attorney Pedro J. Mercado, Assistant County Attorney ** Susan M. Grimsley, Assistant County Attorney ** Natileene W. Cassel, Assistant County Attorney Cynthia L. Hall, Assistant County Attorney Christine Limbert-Barrows, Assistant County Attorney Derek V. Howard, Assistant County Attorney Lisa Granger, Assistant County Attorney ** Board Certified in City, County & Local Gow. Law BOARD OF COUNTY COMMLm_N_F_Q_c Mayor Sylvia J. Murphy, District 5 Mayor Pro Tem Heather Carruthers, District 3 Kim Wigington, District 1 George Neuge% District 2 Mario Di Gennaro, District 4 Office of the County Attorney 1111 12s' Street, Suite 408 Key West, FL 33040 (305) 292-3470 — Phone (305) 292-3516 — Fax Authorization for Dual Representation by the Monroe County Attorney's Office and Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. I, Ronda Norman, Director of the Monroe County Code Enforcement Department, hereby authorize the Monroe County Attorney's Office and the law firm of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. to represent me in the matter of Echols v. Monroe County, Townsley Schwab, Ronda Norman, and Ervin Higgs, Case No.: 10-cv-10085-JEM. I understand that both the firm of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. and the Monroe County Attorney's Office also represent Monroe County and Townsley Schwab, other parties named in the same action. I have been advised that the potential for a conflict of interest between my interests and those of the other defendants is minimal at most. However, if such a conflict does arise, the County Attorney's office and/or Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. will advise me in writing, explaining the nature of the conflict, before moving to withdraw. In the motion to withdraw, the County Attorney's Office and/or Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. will ask the Court to allow me adequate time to seek new counsel of my own choosing. further understand that if such a conflict does arise, that the law firm of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. and/or the County Attorney's Office may attempt to continue to represent the other defendants after withdrawing from representing me if not prohibited by the Rules of Professional Conduct or order of the Court. I have been further advised that should a conflict of interest arise, I may be entitled to retain counsel of my choosing to be paid at the expense of the County, subject to the limitations set forth in Resolution 017-2005 and F.S. 111.07. With this understanding, I consent to the dual representation by the County Attorney's Office and the law firm of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. Ronda Norman, Director date Code Enforcement Department C UNTY So�MONROE KEY WESTLORIDA 33040 (305)294-4641 Suzanne A. Hutton, County Attorney** Robert B. Shillinger, Chief Assistant County Attorney ** Pedro J. Mercado, Assistant County Attorney ** Susan M. Grimsley, Assistant County Attorney ** Natileene W. Cassel, Assistant County Attorney Cynthia L. Hall, Assistant County Attorney Christine Limbert-Barrows, Assistant County Attorney Derek V. Howard, Assistant County Attorney Lisa Granger, Assistant County Attorney ** Board Certified in City, County & Local Govt. Law BOARD OF COUNTY COMMISSIONERS Mayor Sylvia J. Murphy, District 5 Mayor Pro Tem Heather Carruthers, District 3 Kim Wigington, District 1 George Neuge% District 2 Mario Di Gennaro, District 4 Office of the County Attorney 1111 I Street, Suite 408 Key West, FL 33040 (305) 292-3470 — Phone (305) 292-3516 — Fax Authorization for Dual Representation by the Monroe County Attorney's Office and Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. I, Townsley Schwab, Director of the Monroe County Department of Planning and Environmental Resources, hereby authorize the Monroe County Attorney's Office and the law firm of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. to represent me schin the matter of Echols v. Monroe County, Townsley Schwab, Ronda Norman, and Ervin Higgs, Case No.: 10-cv-10085-JEM. I understand that both the firm of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. and the Monroe County Attorney's Office also represent Monroe County and Ronda Norman, other parties named in the same action. I have been advised that the potential for a conflict of interest between my interests and those of the other defendants is minimal at most. However, if such a conflict does arise, the County Attorney's office and/or Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. will advise me in writing, explaining the nature of the conflict, before moving to withdraw. In the motion to withdraw, the County Attorney's Office and/or Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. will ask the Court to allow me adequate time to seek new counsel of my own choosing. further understand that if such a conflict does arise, that the law firm of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. and/or the County Attorney's Office may attempt to continue to represent the other defendants after withdrawing from representing me if not prohibited by the Rules of Professional Conduct or order of the Court. I have been further advised that should a conflict of interest arise, I may be entitled to retain counsel of my choosing to be paid at the expense of the County, subject to the limitations set forth in Resolution 017-2005 and F.S. 111.07. With this understanding, I consent to the dual representation by the County Attorney's Office and the law firm of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. Townsley Schwab, Director date Department of Planning and Environmental Resources Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 1 of 40 JOHN ECHOLS and GAYLE ECHOLS, Plaintiffs, vs. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA KEY WEST DIVISION CASE NO. 10-10085-CIV-MARTINEZ-BROWN MONROE COUNTY, FLORIDA, TOWNSLEY SCHWAB, individually, RONDA NORMAN, individually, and MONROE COUNTY PROPERTY APPRAISER ERVIN A. HIGGS, in his official and individual capacities, Defendants. AMENDED COMPLAINT FOR MONEY DAMAGES AND DEMAND FOR JURY TRIAL Plaintiffs JOHN ECHOLS and GAYLE ECHOLS sue Defendants MONROE COUNTY, FLORIDA, TOWNSLEY SCHWAB, individually, RONDA NORMAN, individually, and MONROE COUNTY PROPERTY APPRAISER ERVIN A. HIGGS in his official and individual capacities, and allege: JURISDICTION 1. This is an action at law against the Defendants to redress the deprivation, under color of law, statute, custom or usage, of rights, privileges and immunities secured to Plaintiffs by the Fifth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983 for deprivation of their rights of due process and equal protection of the law. 2. This Court has jurisdiction over this action pursuant to 42 U.S.C. § 1983 and 28 U.S.C. I Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 2 of 40 §§1331 and 1343(a). VENUE 3. All the events or omissions giving rise to Plaintiffs' claims occurred in Monroe County, Florida, within the Southern District of Florida. Venue is proper in the Southern District of Florida pursuant to 28 U.S.C. § 1391(b). PARTIES 4. Plaintiffs, JOHN ECHOLS and GAYLE ECHOLS (hereinafter "ECHOLS" or "the Echolses"), at all times material hereto, were residents of Monroe County, Florida and over the age of eighteen. 5. Defendant MONROE COUNTY, FLORIDA (hereinafter "MONROE COUNTY" or "the County") is a political subdivision of the State of Florida. 6. Defendant TOWNSLEY SCHWAB (hereinafter "SCHWAB") is the Director of the Monroe County Planning and Environmental Resources Department, which administers all ordinances applicable to planning and zoning as defined in the Monroe County Comprehensive Plan, and which reviews all plans for new construction and development for compliance with the County's Land Development Regulations, including environmental compliance. He made a decision on September 12, 2008 which caused Monroe County to treat a subsequent purchaser of ECHOLS's property more favorably than ECHOLS with respect to rights to develop the property. He is being sued in his individual capacity. 7. Defendant RONDA NORMAN (hereinafter "NORMAN") is the Director of the Monroe County Code Enforcement Department. She made a decision to refrain from enforcing the Monroe County Code against a subsequent purchaser of ECHOLS's property until September 2 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 3 of 40 2007, which caused the County to treat the subsequent purchaser more favorably than ECHOLS with respect to the use and enjoyment of the property, as well as the value of the property. She is being sued in her individual capacity. 8. Defendant MONROE COUNTY PROPERTY APPRAISER ERVIN A. HIGGS (hereinafter "HIGGS") is the Monroe County Property Appraiser, an elected constitutional officer providing annual official appraisals of all real properties in Monroe County. His office, the Monroe County Property Appraiser's Office (hereinafter "PAO"), is locally -funded. HIGGS made decisions each year from 2005 through 2009 which caused Monroe County to treat a subsequent purchaser of ECHOLS's property more favorably than ECHOLS with respect to fair market value/profitability of the property. He is being sued in both his official and individual capacities. 9. Defendants SCHWAB, NORMAN, and all other County employees named in this Complaint were acting under color of law at all times material hereto, and Defendant HIGGS and all PAO employees named in this Complaint were acting under color of law at all times material hereto. GENERAL ALLEGATIONS 10. The property that is the subject of this suit (hereinafter referred to as "the property" or "the subject property") is located at 16970 Old State Road 4A, Sugarloaf Key, Monroe County, Florida, is legally described as Lot 20, Resub. of Govt. Lot 1, Old State Road 4- A,Section 14, Township 67, Range 27, Sugarloaf Key, and also identified by the County as Alternate Key ("AK") Number 1152722. It is oceanfront property totaling at least 1.2 acres (and the County Property Appraiser currently deems it as 1.87 acres). 3 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 4 of 40 11. According to Monroe County records ("property record card"), in the year 1976, the property was designated as land of "critical concern", and the taxable value of the property at that time was reduced for that reason. The same record contains a photo of a small cottage on the property. Echols Ownership/Attempt to Seek Permission to Make Improvements 12. On April 21, 1997, Echols purchased the subject property from Nancy Gethin for $42,000.00, plus seller's legal fees/costs of $3,650.00. At that time, the Monroe County PAO valued the property for property tax purposes at $25,315.00 ($24,190.00 for the land plus $ 1,125.00 for the then -abandoned cottage). The Echolses desired to renovate the cottage and live in it. 13. In the Fall of 1997, the PAO (under the direction of County Property Appraiser HIGGS), without discussion with or warning to Echols, changed the value of the subject property to just $200.00 ($200.00 for the land and zero dollars for the structure). When Echols received their property tax bill with the new valuation, they contacted the PAO for an explanation, and a PAO employee named Sharon eventually advised Echols that is was devalued due to a 1996 county biologist letter stating the property was wetland and unbuildable. 14. Echols appealed the valuation to the Monroe County Special Master to attempt to modify the valuation upward. The Special Master, on November 19, 1997, denied the appeal, citing that "improvements on the property have salvage and scrap value only, property unusable, worth only 1/4 TDR." 1 "TDR" means Transferrable Development Right, which is a right under the Monroe County Code to transfer a right to develop to a different property that would have enough uplands to build something on. A one -quarter TDR, however, could not be used to build on another property unless that property would contain at least four acres. 59 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 5 of 40 15. Echols then sought a determination from the County that they would be permitted to build on the subject property. In August 1998, they retained Donald Craig of the Craig Company, a planning expert in Key West (formerly of the Monroe County Planning Staff), to facilitate that process. 16. At all times material hereto, under the Monroe County Code (hereinafter "MCC"), there was and is a general restriction on the number of dwelling units that can be constructed in the County in any one year. This is called the Rate of Growth Ordinance, or "ROGO".2 Property owners that have a dwelling unit that was in existence as a "principal residence" prior to 1986 are entitled to "a density allocation of one dwelling unit for each such unit in existence, and such dwelling unit shall not be considered as a nonconforming use." 17. The primary rationale for the ROGO is to limit the number of vehicles on the road in mandatory evacuations of the Keys for hurricanes, so that the entire Keys population may be evacuated within 24 to 30 hours. A logical corollary to that is that if a dwelling unit was already being used as a principal residence prior to the ROGO going into effect, then merely continuing its use as a primary residence (even if improved or replaced) would not increase the number of vehicles heading out of the Keys in an evacuation.3 18. In other words, if it can be proven to the County that a structure, prior to 1986, was an owner's principal (primary) residence, the structure becomes "grandfathered in" despite it being nonconforming to current land use regulations relating to wetlands protection and density MCC § 130-163, former §9.5-268. For example, Policy 101.5.8 of the Monroe County Comprehensive Plan states the county may develop a program, called Transfer of ROGO Exemption (TRE), that would allow for the transfer off -site of dwelling units, hotel rooms, campground/recreational vehicle spaces and/or mobile homes to another site in the same ROGO sub -area, provided that they are lawfully existing and can he accounted for in the County's hurricane evacuation. I Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 6 of 40 restrictions, and the structure may be improved or replaced with another structure (in accordance with permitting requirements). 19. On March 4, 1999, Don Craig, on behalf of Echols, submitted a letter to Monroe County Planning Director Timothy McGarry seeking permission for the Echols to make improvements. He submitted evidence to the County that he argued showed that the abandoned cottage was once a primary residence, proving that, at one time, it had electricity and running water. Craig argued the facts established that the cottage "was clearly in existence in 1986 when the Comprehensive Plan went into effect." 20. On behalf of Echols, Craig met with and corresponded with County staff several times to seek the right to build, to no avail. On August 2, 1999, Timothy McGarry concluded the process by writing a letter to Craig stating the County's decision that Echols could not build/make improvements on the property. McGarry stated the following as reasons for said decision: (1) the land use district in which the property is located 4 allows a maximum residential density of 0.5 units per acre (meaning one unit per two acres of land), and the property contains only 1.5 acres; (2) the property never had a homestead exemption; (3) there were no records of leases, utilities, or any proof that the property was used a principal dwelling unit and not as a temporary or second home; 4 The land use district in which it was located was then stated to be the "Sparsely Settled Land Use District" with a maximum density of '/z unit per acre ( in other words, at least 2 acres were needed to have one unit). The County then changed the property's designation to "Native Area Land Use District" which has a maximum density of only'/4 unit per acre. 6 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 7 of 40 (4) the prior owner, who resided out of state, abandoned the maintenance and upkeep of the structure, causing the structure to be devalued from $4,660 in 1990 to $1,125 in 1991 to $0 in 1997, and under the County Code, any non -conforming structure which is damaged or distorted so as to require substantial improvement may be repaired or replaced only if the structure conforms to the provisions of the land use district in which it is located'; and (5) the County Environmental Resource Department had sent a letter of Current Site Conditions to the prior owner that stated there are no uplands on this property, and the PAO in 1999 noted on the property record card, "Building in bad shape. Some exterior walls missing. Salvage value only. Unbuildable per biologist letter 8/26/96." 21. McGarry concluded that it was his "determination that this property is non- conforming to density requirements of the Sparsely Settled land use district and does not meet the qualifications of a principal dwelling unit." Id. (In other words, the cottage on the property could not qualify for a ROGO exemption.) 22. The biologist letter that McGarry mentioned was a 1996 letter from County Biologist Dianna L. Stevenson to the prior owners, Bruce and Nancy Gethin, stating, "There are no uplands located on your property" and also stating that therefore, the property cannot he developed but would have a one -quarter unit per acre transferable development right (a right to build a unit on a different piece of land that would be at least four acres).e 23. Following McGarry's final determination that the property was not ROGO-exempt and was "unbuildable", Elizabeth Johannsen of the Craig Company, on behalf of Echols, brought ' MCC §9.5-144(2)b (now § 102-57(e)(2) under the revised code). e Echols did not see the aforesaid biologist letter until May of 2000, when Mark Rosch wrote to Echols that the County was declining to purchase the property from Echols, discussed hereinbelow. 7 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 8 of 40 the issue to County Wetlands Biologist Jeannette Hobbs for an opinion on buildability of the property. Hobbs told Johannsen that county maps showed that the property is below seasonal high water line and would therefore not he suitable for development. 24. Hobbs, however, to he 100% certain, personally examined the property on September 2, 1999. Hobbs advised Johanssen that although there was a "disturbed strip" with some fill around the structure and a drive, the strip "is so narrow that even with only a 20' setback from wetlands, [Echols] would not have any room to build. Everything adjacent to the disturbed area is red flag, and part of it is tidal." Hobbs observed at that time that "there was standing water over most of the site." Echols Attempt to Seek Beneficial Use Application or County Purchase 25. Because of the County's determination that Echols could not build under a ROGO exemption (or otherwise), Craig, on behalf of Echols, met with County staff in November 1999 to determine whether a beneficial use application from Echols could be approved. Such application would be for a determination that the County should either grant a building permit or give monetary compensation to the property owner in order to avoid an unconstitutional "taking" of the property. 26. For said purpose, Craig met with Growth Management Director McGarry, Planning Director Marlene Conaway, Acting Environmental Resources Director Ralph Gouldy, Development Review Coordinator Ed Koconis, and County Attorney Karen Cabanas. They expressly advised Craig that a beneficial use application for Echols could not be granted. 27. On December 6, 1999, Craig advised Echols of the above and also informed Echols that it would be impossible to meet setback requirements, and cost of repair to the building would be greater than 50% of the building's value; therefore, under County Code, the structure 8 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 9 of 40 could not be improved, nor could a new structure be erected. 28. Craig then contacted Mark Rosch, Executive Director of the Monroe County Land Authority, to ask the County to purchase the property from Echols because of it being entirely wetlands and it being adjacent to other wetlands. Rosch, after requesting and receiving a letter from Echols about offering the property, on May 26, 2000 advised that the County declined to purchase the property, stating, inter alia, that the 2010 comprehensive plan was in effect when Echols bought the property, and that the County had notified the prior owners in 1996 that the property is entirely wetland and could not be built upon. 29. Craig, as well as land use attorneys that Echols consulted, advised Echols that nothing further could be done to obtain relief regarding either permission to build or getting compensated by the government for being prohibited from making improvements. Code Enforcement Notices to Echols 30. In the meantime, on March 3, 2000, the Monroe County Department of Code Enforcement sent Echols a Notice of Violation for failure to have a permit for an on -site sewage treatment and disposal system — because the improved property, according to county records, had no such functioning system. After Echols advised Code Enforcement that the County refused to issue a building permit, Code Enforcement dropped the matter. Under then -Code Section 9.5-144(2)(b) [current Code Section 102-57(e)(2)], any part of a nonconforming structure that is damaged or destroyed to the extent of less than 50 percent of the fair market value of such structure may be restored if a building permit for reconstruction shall be issued within six months of the date of the damage, but a nonconforming structure that is damaged or destroyed so as to require substantial improvement may be repaired or restored only if the structure conforms to the provisions of the land use district in which it is located. (Those provisions would include the density restrictions — the minimum acreage necessary for a dwelling unit to be on the property.) 9 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 10 of 40 31. On November 29, 2000, Code Enforcement sent a Notice of Violation for the cottage being an unsafe structure. An official then advised Echols that Code Enforcement would be satisfied if the structure's windows and doorways would be boarded up so that it would be impossible to enter. Echols complied. Echols Sale of Property 32. As it became clear that the Echols's dream of living in an island cottage on the subject property would be thwarted by the County, and that the County would neither purchase the property nor offer any compensation for the denied use, they contacted a realtor, K. Mahoney of Century 21 in June 2003 to sell the property, with asking price of $95,000.00. 33. Mahoney asked the County biologist, Diana Stevenson, if there was any possibility for her to determine if there was enough upland area on the property to build anything. Stevenson insisted that there was no such upland area, and hence no chance to build. 34. Because of the County's determination that the property was unbuildable, the ad for the sale stated: Abandoned Oceanfront Shack with no electric, no plumbing, no windows & no doors on a 1.5 acre oceanfront lot that County says cannot be built on. Structure is viewed as a non -conforming use that may not be remodeled or improved. County will issue no permits other than demolition and then will not allow anything to be rebuilt because land is mostly wetlands and unbuildable. 35. On January 28, 2004, Echols sold the property for $50,000.00 to Candace Andrus (hereinafter "Andrus,,), who told Mahoney that she wanted the property to use it as "a kayak launch". Echols later learned that Andrus was in fact a prolific Keys property investor who managed to "flip" many properties for handsome profits. After a bizarre series of events (to be Andrus later took the married name of Andrus -Akins or Akins; in this Complaint, however, she will be referred to as "Andrus". 10 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 11 of 40 discussed hereinbelow), Andrus advertised this same property for sale a few years later as follows: AS IS MM 17 Oceanfront 2 acres ROGO exempt! Build NOW. Shallow water access on quiet road far from USI. Area lots are acreages. Water meter is in, S8K in assessments paid. Health Dept permit approved for septic. Replace building that was just removed with 3 story home on stilts, 350 sgft each floor, total 1050 sf living area, flat roof, storage on ground. Motivated seller. $ 189,000. Andrus's Improvements and Permit Application 36. Shortly after taking possession of the property in 2004, Andrus, without a permit, made several illegal improvements to the abandoned cottage. She removed the boards that Code Enforcement had required Echols to put up, painted the cottage white with blue and yellow trim and installed a new roof, doors, shutters, a gas hot water heater and propane tank, and solar panels for electricity - as well as hung cute Keys decor on the exterior walls (including wooden signs saying "Conch Republic" and "Wastin' Away Again") and surrounded the walls with flowering plants and decorative rocks, and otherwise improved the structure. 37. On February 1, 2005, Andrus applied for a building permit for the above already - made improvements; however, she did not wait for a permit to be granted for same before completing them — and in fact never received a permit. Four years later, Andrus in fact requested that she be denied a permit for said improvements after securing County permission to replace the structure, which is a point she used to flip the property for a profit (discussed hereinbelow). 9 Permit Application No. 051-0508 11 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 12 of 40 PAO Upward Modification of Appraised Value 38. In the meantime, on February 7, 2005, PAO appraiser Mary Beth Lentz visited the property and prepared a "Residential Worksheet" describing the structure. At that time, all of the above illegal improvements were observed. The PAO, however, did not have that worksheet prepared for the purpose of reporting the illegality of the improvements. Rather, it was used to support a shocking increase in the official appraised value. 39. In the Fall of 2005, the PAO changed the valuation to the subject property from $200.00 to over half a million dollars — to $513, 897.00 ($500,100.00 for the land and $13,381 for the building). In the Fall of 2006, the PAO increased that value to $546,274 ($525,125.00 for the land and $20,741.00 for the building).10 40. The PAO, in deciding the upward revaluation, deliberately disregarded: (a) the official County determination that the property consisted solely of unbuildable wetlands, (b) the fact that Andrus's improvements were totally unpermitted, (c) the fact that, under County Code, the improved structure was an "unsafe structure", and (d) the fact that the Growth Management Division had prohibited Echols from making improvements and had adamantly refused to grant Echols a ROGO exemption. Permit Application Activity 41. On February 16, 2005 (nine days after PAO's Lentz visited the property), Building Department employee Suzanne Lex made a computer entry stating that Planning [Planning and Environmental Resources Department] needed additional water and solid waste records, that 10 The 2007 PAO value was $478,901 ($465,125 for the land, $13, 381 for the building, and $395 for "misc."). In 2008, after Andrus petitioned for a downward change in valuation, the County reduced the value to $210,999, and Andrus withdrew her petition. In 2009, the value increased to $211,055. 12 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 13 of 40 "records seem to indicate that dwelling unit use did exist on site", and that she would "send for review regarding floodplain and certificate of occupancy requirements." 42. According to a Planning Staff report of May 27, 2008 (discussed hereinbelow), the County in fact wished to give Andrus the opportunity at that time (in 2005) to "submit documentation supporting the lawful -establishment of a dwelling unit within the existing structure" — in other words, to give her the opportunity to submit information in order to obtain the same exemption that Echols has unsuccessfully attempted to obtain in 1999. 43. Despite the County's knowledge of Andrus's unpermitted, unsafe structure, and her unpermitted improvements thereon, there was no further activity on the permit application for about another 17 months, and there was no code enforcement activity until long after that. < 44. On July 21, 2006, Building Department employee, "MKT" made a computer entry that Andrus had called "and was waiting for Suzanne to do an exemption letter so the permit could be issued", that "Suzanne Lex must have forgot [sic] and so the file was hanging in pending", and that the file was given to Joe Haberman (in Planning) "to either approve or deny the file." 45. On September 27, 2006, Building Department employee "TB Haber" made the following computer entry: "Planning unable to approve after -the -fact roof repairs and after -the - fact installation of solar panels, screen doors, driveway gates, shutters, gas hot water heater and propane tank" and that Planning was "waiting on ROGO exemption to determine lawful establishment" (e.s.) - and that a letter was sent on that date to Andrus. 46. However, Andrus at that point had not even applied for a ROGO exemption. < < There was no code enforcement case against Andrus created until August 28, 2007, after Echols complained to the County on June 25, 2007 about the difference in treatment between them and Andrus, discussed infi^a. 13 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 14 of 40 Three months after the above entry indicating that the County was waiting for a ROGO exemption to be granted, Andrus, on December 28, 2006, for the first time, submitted her application for a ROGO exemption. Planning Staff thereafter advised Andrus that the 8/2/99 letter that Timothy McGarry wrote to Don Craig (when Echols owned the property) was a conclusive determination that such application could not be granted. Echols Inquiry 47. While Andrus was taking steps to legalize her improvements, John and Gayle Echols, learning of the shocking increase in value of the property after they sold it, wrote to County Commissioners and Property Appraiser HIGGS on June 25, 2007 to ask why the property was devalued to $200.00 when they owned it and then, after they sold it, increased in value to $546,274.00. Higgs did not respond. 48. However, on June 29, 2007, Tamara Lundstrom, an assistant to the County Mayor, sent an email to Higgs at PAO and Growth Management Acting Director Andrew Trivette, asking for an explanation for the massive increase in value and "perhaps the ability to build on the parcel" and attaching Echols's letter to the email. Jenine Knowles of the PAO replied to Lundstrom that they were "already working with Mr. and Mrs. Echols problem". Lundstrom requested that the PAO email her their findings. 49. On July 3, 2007, Mary Beth Lentz (the appraiser with PAO who had reported Andrus's improvements in 2005 to support the huge increase in the value) advised Lundstrom there would be a staff meeting on July 51h with representatives from PAO and Code Enforcement to discuss the matter. Lundstrom forwarded that email to Trivette and asked, "Was this property reclassified at some point by special appeal before the PC [Planning Commission] and BOCC [Board of County Commissioners]? " That email was forwarded to a few other County staff 14 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 15 of 40 employees, including Mayra Tenzanos, Julie Thomson, and Aref Joulani, as well as Code Enforcement Director NORMAN. 50. On July 4, 2007, Trivette emailed to Lundstrom: We are still researching this site. However, the property has been reviewed by the Biologist in the past which is what typically creates a devalued scenario in the property appraiser's records. Sometime though if a devalued property changes hands and the new owner wishes to peruse [sic] the development of the parcel the first approach is to re-establish the taxable value to demonstrate the worth of the property. We should know more after the July 5 meeting. 51. Lundstrom, on July 7, 2007, by email requested filed documentation from Growth Management and requested from NORMAN the "McGarry info" (apparently regarding McGarry's denial of permission to build in 1999). Belated Code Enforcement Activity 52. The Lundstrom emails caused the Code Enforcement Department to initiate activity, after it long had "turned a blind eye" to Andrus's illegal improvements to the same structure that was deemed "unsafe" during the Echols's ownership (requiring it to be boarded up). 53. On July 10, 2007, a Monroe County Code Enforcement employee, two and half' years after Andrus applied for an after -the -fact building permit for the unpermitted improvements in February 2005 and nine and a half months after the September 27, 2006 decision to deny that permit, visited the property for an "initial inspection" and took photos of the cottage. Code Enforcement records show that on August 28, 2007, it finally created a case in its system against Andrus for unsafe structure. 15 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 16 of 40 The Lundstrom Email Chain 54. On July 16, 2007, Lundstrom emailed to Lentz at PAO asking if information from the July 5th meeting was available yet. Lentz replied that Appraisal Supervisor Bob Hubbard had met with NORMAN and Nancy Dowling of Code Enforcement, and NORMAN had told Hubbard that the parcel was under investigation by her department, "but she was not able to discuss matter at this time." Lentz told Lundstrom she would pass along the results of the investigation. 55. That same day, Lundstrom emailed to Andrew Trivette, cc to Ronda Norman, asking to copy the Mayor on the findings when the investigation is complete. She stated the Board of County Commissioners was copied on the letter from Echols and looked forward to reviewing the report on the issue. 56. On July 17, 2007, Lundstrom then emailed to NORMAN: Hi, The Echols, previous property owners of the parcel that bring this to the Property Appraiser's attention, are very upset. They tried for years to get a building permit for new house, hired Don Craig, another land use attorney, etc. at no doubt a sizable expense to no avail. Then the land was devalued to $200.00, they sold it for peanuts, and the next owners gets it revalued to $500.000+ because they want to replace the 1928 cottage. Drew said that that's standard, that when a new property owner, (i.e. not current owner when it was devalued), wants to seek redevelopment of a property that has been devalued, the first (unbelievable) step is to reestablish the property value under today's current value. Imagine that! Then, all the current property owner has to do once the value is restored, is to let the proposed (bogus) "redevelopment plans" fall by the wayside, and bada bing, you've got a property with a half million dollar value on the property record that suggests a buildable lot. 16 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 17 of 40 Standing by, T That day, Norman replied to Lundstrom, " I'll just keep my mouth shut! Hey, that's different huh?" Lundstrom replied, "Don't hurt yourself! I take it this could get real interesting." 57. On July 19, 2007, Lundstrom emailed to Norman asking where there is a document trail regarding the new owner seeking to restore valuation, how PAO reconciled the new valuation with the old, and asked: Anytime they see a major change of valuation of the property, why don't red flags go up to determine the reason? Why isn't notice automatically sent to Code Enforcement so they can check building permits on the property? Why, why, why? There is something very wrong here, and it's not just the unpermitted construction. Please forward this onto Bob in PAO for me, I only have an email for Jenine and Robbie Shaw. Lundstrom also forwarded the above email to Lentz at PAO, telling her to forward to the appropriate persons at PAO. Lundstrom asked for any information available on the valuation change and stated: We understand Code Enforcement is investigating this now as there are no permits on record for the additions to the existing structure. However, this will not answer how the valuation change in 2005 was reconciled with the seven years prior of $200.00 and unbuildable classification. 58. On July 20, 2007, NORMAN replied to Lundstrom that she will give her request to PAO, and that Code Enforcement would fax to Lundstrom "documentation in the file from Tim 17 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 18 of 40 McGarry regarding the property" (again apparently referring to the McGarry denial of a ROGO exemption to Echols). 12 Borglum's "Explanation" of the Upward Valuation 59. That same day, Karl Borglum, Assistant Property Appraiser at PAO (under the direct supervision of Defendant HIGGS), emailed to Lundstrom (cc'd to Norman), his explanation of the increase in value from $200.00 in 2004 to $513,897.00 in 2005. He stated that the increase was based upon the sale price [the fifty thousand dollars that Andrus had paid Echols] and the "change to the building" [Andrus's unpermitted improvements], and that Andrus never appealed the increase in value. He added, "Trying to value land in Monroe County where the property rights shift like sand is difficult at best" and also stated, "Property rights and values can be dynamic, especially in Monroe County." 60. NORMAN forwarded to Andrew Trivette the email thread with Lundstrom, including Borglum's "explanation" and stated, "I couldn't leave you out... [sic] She's amazing!" 61. That same day, Lundstrom replied to Borglum, stating that Borglum's review of the history did not reveal any specific mechanism that revalued the parcel (such as an appeal to the Value Adjustment Board) and said she was looking for any documentation that would explain the sudden revaluation. She also stated: From what I understand, although I cannot pull down a case record on-line as yet, Code Enforcement has found the work on the cottage to have been accomplished without a single building permit on record, over 50% value of the original structure, so they will be pursuing that violation issue with the current property owner who purchased the parcel from the Echols in 2004. Interestingly, per the Echol's letter, they attempted to pursue legal '' This indicates that though the McGarry letter concerned a Planning decision, it was also in possession of the Code Enforcement Department during the period of time in which Code Enforcement looked the other way after Andrus improved the structure. 18 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 19 of 40 (e.s.) building rights to replace the cottage with a proper house for several years and two land use attorneys, one the eminent Donald Craig, to no avail. It will be interesting to see how this ultimately plays out. If building rights have been restored to the parcel essentially by the unpermitted construction, so that whether he has to tear down the cottage or not, it inight be possible the owner has enabled himself to eventually construct a proper stilt house on the parcel where the Echol's could not by.following the established perinitting process. 62. That same day, Borglum replied to Lundstrom that there "does not need to be a specific `mechanism' that triggers or causes property to be revalued as we are mandated to do that annually by state law." He added, "Since real property is dynamic the value models are always changing." He reiterated the facts that there was sale of the property for $50,000, "immediately followed by the physical improvement of a derelict building into an occupied structure" and stated, The conclusion to revalue the property from the historical $200 assessment appears reasonable. The level of value may be questionable, but that is a different issue that will be addressed internally. 63. On August 14, 2007, Borglum sent a letter to Echols with copies of his emails to Lundstrom and stated that PAO would review the property classification and their position for the 2007 tax roll after receiving an opinion from Code Compliance "because of the conflict as to the property rights of record and the structural improvement and existing occupancy." 64. While the PAO then did reduce the value of the property from the 2006 value of $546,274 down to $478,901 for 2007 ($465,125 for the land, S13, 381 for the building, and $395 19 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 20 of 40 for "misc."), this coincided with the general downward trend of the housing market and obviously had no relation to the unpermitted status of Andrus's improvements.13 Code Enforcement Proceedings 65. After creating a code enforcement case of record against Andrus (for the first time) on August 28, 2007, the Code Enforcement Department, on September 20, 2007, sent to Andrus a Notice of Violation regarding rebuilding the structure without permits. The notice required her to either obtain a building permit and bring the unsafe structure into compliance with code or obtain a demolition permit and remove it. Permit Application Status 66. Following that, on November 20, 2007, Building Department employee "William C" made the computer entry, "CW BH has letter in file saying unlawful SFR [single family residence]. Talked to Nancy Dowling about code case & this permit & we decided to expire this permit & if she needed a permit she would have to apply for a new one." Andrus ROGO Exemption Re -application and Initial Staff Denial 67. On December 13, 2007, Andrus re -applied for a ROGO Exemption, despite being advised by the County a year earlier that such would be impossible due to the 1999 McGarry determination in the Echols case. Planning Director SCHWAB, at first, denied the re -application on February 21, 2008. His denial letter largely mirrored McGarry's letter denying an exemption to Echols. Amongst the reasons cited for denial were: Pursuant to Monroe County Code §9.5-268, in order to be exempt from the ROGO, one lawful dwelling unit must have been in existence on the effective date of the county's land development 13 In 2008, after Andrus, three days after receiving her ROGO exemption, petitioned for a downward change in valuation (in order to save on property taxes), the County reduced the value to $210,999. In 2009 value slightly increased to $211,055. 20 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 21 of 40 and regulations (September 15, 1986) or, if constructed after the effective date, must have been permitted in accordance with the land development regulations and the ROGO permit allocation system. A letter dated August 2, 1999 from Growth Management Division Director Timothy McGarry to Donald Craig of the Craig Company, stated that the property was non -conforming to density requirements and did not meet the qualifications of a principal dwelling unit. Therefore, the division concluded that the property owner could not make improvements to the structure as a primary residence. Other reasons cited by SCHWAB supporting denial were the lack of any building permit on record, 1991 photos showing an uninhabited dilapidated structure, aerial photography from 1984 to 2006 showing "development on the property" but being "inconclusive as to whether the structure is residential", the PAO records indicating the building existing on the property from 1982 to 1996 with a value as low as $1,125, indicating the structure was not fit for human habitation, 1991 PAO notes indicating the structure was uninhabitable and had salvage value only, and the lack of any utility records. ROGO Exemption Appeal and Initial Staff Opposition 68. On March 31, 2008, Andrus, represented by Andrew Tobin, Esq., a Keys attorney, filed an appeal of such denial to the Monroe County Planning Commission. County Planner Joe Haberman then prepared a staff report recommending denial of that appeal, and said report was 21 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 22 of 40 issued on May 27, 2008 by Haberman and Assistant County Attorney Susan Grimsley, who advises and works with planning staff.14 69. Said report cited the reasons in the initial denial letter but added in-depth analyses regarding some of those reasons. They recognized that an archived 1976 property record card showed that the building was existing at that time and stated: Staff has found that the existing structure has been in existence since as early 1976; however, there is no record that the existing structure was ever approved to serve as a dwelling unit. Furthermore, there is no evidence that the structure was inhabited or otherwise used as a residence in 1986 (the year in which the current land development regulations were adopted), in 1990 (the year of the 1990 census, which serves as a basis for the ROGO permit allocation system) or in 1992 (the year in which the ROGO permit allocation system went into effect.) Sudden 180 Degree Turn to Favorable Treatment of Andrus 70. The Planning Commission was scheduled to hear Andrus's appeal on June 11, 2008. On June 9, 2008, Attorney Grimsley sent an email to Planner Haberman with the subject line "Candace Akins -Andrus", asking him, "Is this the parcel that we have an appeal on Wednesday [June 1 lth] the subject of code enforcement? After the fact permits required?" Haberman replied with data on the open code enforcement case against Andrus, with the subject line, "RE: Candace ONE OPEN CODE CASE, DECISION ON APPEAL WILL HELP WITH NEXT ACTION (CASE WAS CONTINUED TO JULY 2008 CODE ENF. HEARING)". 71. Grimsley forwarded Haberman's aforesaid email to Ralph Gouldy and stated, "Joe said you knew of unpermitted fill at this location. Do you have specific knowledge of it?" Gouldy, who back in 1999 was the Environmental Resources Director who had met with Don " Grimsley in fact became interim Growth Management Director in September 2009 when Andrew Trivette resigned. 22 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 23 of 40 Craig and participated in the decision to deny Echols a beneficial use application for the same property, did not send a written reply to Grimsley. s 72. Attorney Tobin obtained a continuance of the June 11, 2008 Planning Commission hearing to July 23, 2008 and then to September 24, 2008. In the meantime, staff and Attorney Tobin exchanged some unusual emails reflecting that staff was now collaborating with Tobin to achieve the ROGO exemption for Andrus. On July 29, 2008, Grimsley sent an email to Tobin, which she cc'd to Planning Director SCHWAB, Planner Haberman, and Planning staff assistant Debby Tedesco, with the subject line, "Candace Akins", asking, "Andy - any chance you can provide ine with the information I requested so I can get this off the September calendar? Thanks." (e.s.) 73. Attorney Tobin replied, "Im working on getting the affidavit from Mrs. Kevan." [sic]. Grimsley replied, "Thank you very much!" Tobin, 37 minutes later, emailed Grimsley an unsigned affidavit, to be attested to by one Jacqueline G. Keevan, and asked, "Susan; Is this affidavit sufficient? Andy". Said affidavit, after it was signed by Mrs. Keevan, was later submitted to SCHWAB as a purported piece of evidence in support of Andrus's ROGO appeal (discussed hereinbelow). 74. On September 3, 2008, Grimsley emailed to Debby Tedesco the question, "What was the date of the original hearing for Candace Andrus Akins that we continued; June? July? I want the date that Mr. Tobin was actually present, as I realize there were other continuances. Thanks." Tedesco replied: "It was first heard on 6.11.08, and continued to 7.23.08 per Andy Tobin's request. Then it was continued again to 9.24.08 unless it gets finalized before that. Let s It is unknown whether Gouldy and Grimsley then conferred about the matter (to be discerned through discovery). 23 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 24 of 40 me know, please. Thank you in advance!" (e.s.) Tedesco inserted a smiley face icon after the directive, "Let me know please." Grimsley replied: "You betcha." 75. Also on September 3'd, Haberman emailed to Grimsley: "it appears that Andy Tobin has not submitted any additional info or affidavits regarding the Andrus -Akins planning commission appeal." Grimsley replied, "Thanks for the Tobin info." The Keevan Affidavit and Aerial Photo 76. The next day, September 4, 2008, after the prodding by staff, Attorney Tobin submitted to Planning Director SCHWAB the signed Keevan affidavit (that he had collaborated with Grimsley on) and an aerial photo in support of Andrus's appeal. His cover letter stated, The house, even when new was small, poorly constructed and never appeared to be in very good condition. Notwithstanding somebody lived there, and was probably very proud to have been able to afford it during the depression. Moreover, the house was recognized and taxed by the Property Appraiser and Tax Collector as a residence and for a time it qualified for homestead exemption. Tobin's information provided in support of the appeal was essentially nothing more than the information that Don Craig, on behalf of Echols, had submitted to the County in support of their efforts to be exempt from the ROGO, with the glaring exception that Tobin brazenly declared that the structure had qualified for a homestead exemption. In fact, however, there is no record or proof whatsoever of the property ever being granted a homestead exemption and Timothy McGarry had stated in his 8/2/99 letter to Don Craig that the property NEVER had a homestead exemption.16 16 The PAO's appraisal/property tax records for the property, which date back to the year 1982, do not reflect a homestead exemption for any year. Although there was an exemption in the amount of $2,350.00 granted in the year 1982 (only), that was not a homestead exemption, as the state-wide homestead exemption rate that year was $25,000.00. The $2,350.00 exemption appears rather to be due to the property being categorized as property "of critical concern". 24 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 25 of 40 77. The Keevan affidavit, dated August 27, 2008 (with the language previously approved by Grimsley on July 29, 2008), stated in total: AFFIDAVIT OF JACQUELINE G. KEEVAN STATE OF FLORIDA COUNTY OF MONROE BEFORE ME, the undersigned Officer, duly authorized to administer oaths and take acknowledgements, personally appeared JACQUELINE G. KEEVAN, who upon being first duly sworn, deposes and says: • My name is JACQUELINE G. KEEVAN and I make this affidavit based on personal information and knowledge. • I have lived on Sugarloaf Key with my husband and family since 1962. • I am personally familiar with the Property which is the subject of an administrative appeal by Candace Akins Andrus, to wit: 14-67-27 SUGAR LOAF KEY, Lot 20, Resub. of Gov. Lot 1, also described as: 16970 Old State Road 4A, Sugarloaf Key • Since 1962 there had always been a small modest house on the subject Property, which over the years had been damaged by several storm events and hurricanes. FURTHER AFFIANT SAYETH NOT [signed and notarized]. 78. The photo Tobin submitted was a high -altitude aerial photo, purportedly from "the 80s", showing a tiny structure amidst a wide swath of mangrove forest (and the use of the structure cannot be discerned therefrom). 79. Neither the photo nor the affidavit that Tobin submitted contained any evidence that the structure was ever used as anyone's principal residence, nor did they contain any evidence 25 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 26 of 40 other than that what County Staff was well aware of when they recommended denial of Andrus's ROGO appeal. Planning Director's Final Approval to Andrus 80. Despite the lack of any evidence that was rationally distinguishable from the Echolses' evidence previously presented to SCHWAB's' predecessor director (McGarry), SCHWAB, on September 12, 2008, granted Andrus her ROGO Exemption in a letter to Attorney Tobin that stated: The Planning Department is in receipt of your letter.... Based on the new evidence provided, including the affidavit of Jacqueline G. Deevan [sic] and the photograph of the subject property, we are hereby granting one (1) ROGO Exemption for the above referenced property..... In granting that ROGO Exemption, Schwab was acting as the final decision -maker for the County on that issue. Andrus Granted Downward Valuation for Property Tax Purposes 81. Three days later, on September 15, 2008, Andrus petitioned the County's Value Adjustment Board to seek a downward modification of the appraised value of the subject property for property tax purposes. On October 16, 2008, Lentz of the PAO emailed Andrus a letter stating the PAO reduced her appraised value from $478,146 to $210,999 and requested Andrus to withdraw her petition if she accepted the new value. Andrus then withdrew her petition. Permit Application/Code Enforcement Entries 82. On October 9, 2008, Schwab's ROGO exemption letter triggered the following computer entry by Building Department employee TB Haber: 26 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 27 of 40 Planning approval of ATF solar panels, screen doors, gates, decorative shutters, water heater, propane tank and to reroof existing structure as per plans in file. Staff has found that the existing structure is ROGO exempt per a letter from the Director of Planning dated 9-12-08. (No mention was made of the inconsistent November 20, 2007 entry that had stated, "we decided to expire this permit"). 83. On October 17, 2008, Mary Wingate, a Building Department flood specialist, entered: ltr to owner 10-17-08, the bldg has been substantially damaged — if not at the correct base flood elevation, must be elevated and retrofitted to meet current FBC. — if unable to do so, can replace with a new elevated house, per ROGO exempt letter in file. 84. On October 21, 2008, Andrus, in a request for a continuance of her code enforcement hearing date of October 30, 2008, wrote, "I received ROGO exemption letter & After -the - Fact Permit Application is being processed by [Building Department employee] Bill Harbert." She was granted a continuance until December 4, 2008. Echols/County Correspondence 85. On December 18, 2008, PAO's Borglum wrote again to Echols (after he heard about Echols verbally complaining to Lentz at PAO about their differential treatment) and stated regarding the SCHWAB letter granting Andrus a ROGO Exemption: It is my understanding that this letter confers a residential development right to the parcel which is subject to all applicable ordinances and engineering standards. There may still be outstanding issues regarding the existing structure and permitting but that is not necessarily relevant to the function of this office. 27 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 28 of 40 86. On January 15, 2009, Echols wrote to SCHWAB asking what the "new evidence" was that SCHWAB had referenced in his 9/12/08 letter granting the ROGO exemption (and also requested a copy of Keevan affidavit and the photo submitted by Tobin). They also asked SCHWAB if the ROGO exemption was granted to Andrus so she can build on her property, and if so, what she is permitted to build. Finally, they asked why Andrus had a case appearing on the 2/26/09 Special Magistrate Agenda. SCHWAB did not answer any of their questions. (e.s.) Permit Application/Code Enforcement: Andrus Requests Denial of Permit to J Replacement of Structure 87. On February 23, 2009, Mary Wingate entered: owner wants a denial letter — I advised her that I would need her to submit as -built plans for the rebuild walls as well as a complete cost breakdown of all work performed on the structure since 1991, which the MCPA deemed it to be of "no value" — once I receive, I can review for nonsub and write a denial letter. 88. At a code enforcement hearing on May 28, 2009, Attorney Tobin was told that Andrus would be denied an after -the -fact building permit (as Andrus had requested), and she would need a demolition permit if she wished to demolish. On August 12, 2009, Wingate entered that the permit application file is closed as the building is being demolished under a different permit. Andrus Sale of Property 89. In September 2009, Andrus put the property up for sale with an asking price of $189,000.00. (At that time, the PAO's value was $211,055). The realtor's listing stated: AS IS MM 17 Oceanfront 2 acres ROGO exempt! Build NOW. Shallow water access on quiet road far from USI. Area lots are acreages. Water meter is in, $8K in assessments paid. Health Dept permit approved for septic. Replace building that was just 28 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 29 of 40 removed with 3 story home on stilts, 350 sgft each floor, total 1050 sf living area, flat roof, storage on ground. Motivated seller. $ 189,000. 90. On December 30, 2009, Andrus sold the property to Puchajda Wojciech of New Jersey for $ 125,000.00. Though her plans to flip the property for close to a half -million dollar profit were apparently thwarted due to the Echols communications/investigation that rendered it impossible for Code Enforcement to continue turning a blind eye, the County's favorable treatment of Andrus enabled her to sell "buildable" waterfront property for a substantial profit (and she sold the property for well under the then -fair market value due to being "motivated" to sell the property in a hurry). Tl 4 NA 4 (:RC 91. The County today still takes the position that a new single-family home may be built on the property, which is considered by the County and real estate professionals to be "residential oceanfront property". At all times material hereto, oceanfront properties with single- family homes in that geographic area, with similar living area square footage as that which the County now allows the subject property to provide (effective as of the September 12, 2008 ROGO exemption), were selling for prices ranging from several hundred thousand dollars to over a million dollars. Those comparable properties continue to have fair market values in that range today. 92. Had the County and the PAO treated Echols in the same favorable way in which it treated Andrus with respect to the property rights pertaining to the subject property, Echols would have been able to: (A) Build a new single-family home on the property with at least 1,050 square feet of living area, and 29 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page W of 40 dollars. (B) Sell the property for a profit of several hundred thousand dollars to over a million 93. The Echolses are therefore damaged by Monroe County and its officials allowing the subsequent owners of the subject property to use and enjoy the property while not allowing the same to Echols when they owned the property, and are damaged by Monroe County and the PAO (and their respective officials) allowing subsequent owners the opportunity to hold the property with a fair market value in the hundreds of thousands of dollars and to make substantial profits on the property, while not allowing that same opportunity to Echols. 94. Had the County and the PAO treated Echols in the same favorable way it treated Andrus, Echols would not have sold the property for only $50,000.00 or any price remotely in that range, but instead would have sold it for a price several times that amount. COUNT I: CIVIL RIGHTS VIOLATIONS UNDER 42 U.S.C. § 1983 - MONROE COUNTY Plaintiffs reallege the allegations of Paragraphs 1 through 94 as if fully set forth herein, and further allege: 95. This is an action pursuant to 42 U.S.C. § 1983 against Defendant MONROE COUNTY for constitutional rights violations. 96. MONROE COUNTY, through decisions of its final policy makers, intentionally denied ECHOLS the opportunity to improve the property and sell the property as buildable property, while allowing Andrus that opportunity, and thereby intentionally discriminated between ECHOLS and Andrus in determining the property rights for the subject property. 97. MONROE COUNTY officials making the decisions affecting the property as described hereinabove knew that the natural characteristics and conditions of the property (including wetlands, mangroves, and other natural attributes) during ECHOLS's ownership were 30 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 31 of 40 exactly the same as they were during Andrus's ownership, and that they continue to be the same today. 98. County Planning Staff (final policy makers regarding the granting of ROGO exemptions) collaborated with Andrus and her Attorney, Andy Tobin, to grant Andrus a ROGO exemption with full knowledge of the denial of same to ECHOLS and with full knowledge that the "evidence" that Attorney Tobin submitted to the County in support of Andrus's ROGO appeal provided no evidence whatsoever that rationally differed from the evidence supplied by ECHOLS and their representative Don Craig in their applications. The Keevan Affidavit, prepared by Tobin with the advice and collaboration of Assistant County Attorney Grimsley, was a pretext for intentionally favoring Andrus and thus invidiously discriminating against ECHOLS. 99. Regarding the aforesaid actions by planning staff, the County intentionally treated ECHOLS differently than others similarly situated (the subsequent owners), and there is no rational basis for the difference in treatment. 100. County Code Enforcement staff (final policy -makers with respect to code enforcement), for roughly three years following Andrus's improvements to the abandoned cottage, deliberately "looked the other way" prior to finally sending a notice of violation to Andrus in September 2007 (due to exposure by Lundstrom's inquiries), despite that they had required ECHOLS to board up the cottage to prevent anyone from entering it, and thereby intentionally discriminated between ECHOLS and Andrus regarding the ability to use and enjoy the structure on the property. 101. Regarding the aforesaid actions by code enforcement staff, the County intentionally treated ECHOLS differently than the other similarly -situated owner, and there is no rational basis for the difference in treatment. 31 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page K of 40 102. The Monroe County Board of County Commissioners (which includes the Mayor) became aware of the aforesaid instances of discrimination between ECHOLS and Andrus and were deliberately indifferent to same. (Though the Mayor's assistant made inquiries into the shocking difference in treatment, said Board did nothing to intervene.) 103. MONROE COUNTY committed and/or allowed the wrongful actions taken against ECHOLS as described hereinabove, exhibiting deliberate indifference to their constitutional rights. 104. Alternatively, SCHWAB, NORMAN and other administrators who were final policy makers were acting pursuant to the pervasive custom and policy of MONROE COUNTY permitting administrators unfettered discretion to commit acts and/or omissions with deliberate indifference to the constitutional rights of persons within MONROE COUNTY. 105. Said actions and/or omissions of MONROE COUNTY were the moving force behind the violation of Plaintiff's constitutional rights, including, but not limited to (a) the right to equal protection under the law, and (b) the right to substantive due process. 106. Defendant's unconstitutional actions proximately caused damage to Plaintiffs as described in Paragraphs 91 through 94 hereinabove. 107. Plaintiff has retained undersigned counsel for this action and is obligated to him for reasonable attorney's fees. WHEREFORE, Plaintiff seeks compensatory damages against Defendant MONROE COUNTY plus costs, prejudgment interest, and attorney's fees pursuant to 42 U.S.C. § 1988. COUNT II: CIVIL RIGHTS VIOLATIONS UNDER 42 U.S.C. M83 - SCHWAB Plaintiffs reallege the allegations of Paragraphs 1 through 94 as if fully set forth herein, and further allege: 32 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 33 of 40 108. This is an action pursuant to 42 U.S.C. § 1983 against Defendant SCHWAB for constitutional rights violations. 109. Defendant SCHWAB, acting under color of law, deprived ECHOLS of their rights secured under the Fifth and Fourteenth Amendments of the Constitution of the United States, including, but not limited to, the right to equal protection under the law and the right to substantive due process. 110. SCHWAB intentionally treated Andrus more favorably than ECHOLS, who had requested, to no avail, approval for property improvements based on their argument (through Don Craig) that the structure on the property qualified as a "principal residence", while Andrus's same argument, which SCHWAB accepted, was based on evidence not rationally distinguishable from ECHOLS's evidence. 111. SCHWAB intentionally treated ECHOLS differently than others similarly situated (the subsequent owners) and there is no rational basis for the difference in treatment. 112. Defendant's unconstitutional actions proximately caused damage to Plaintiff as described in Paragraphs 91 through 94 hereinabove. 113. Plaintiffs have retained undersigned counsel for this action and are obligated to him for reasonable attorney's fees. 114. Defendant's commission of his wrongful actions entitles Plaintiffs to an award of punitive damages, as said actions were wanton, willful, and/or made with reckless disregard for Plaintiffs' rights. WHEREFORE, Plaintiffs respectfully request an award of compensatory damages and punitive damages against SCHWAB individually, plus costs, prejudgment interest, and attorney's fees pursuant to 42 U.S.C. § 1988. 33 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 34 of 40 COUNT III: CIVIL RIGHTS VIOLATIONS UNDER 42 U.S.C. M83 -NORMAN Plaintiffs reallege the allegations of Paragraphs 1 through 94 as if fully set forth herein, and further allege: 115. This is an action pursuant to 42 U.S.C. § 1983 against Defendant NORMAN for constitutional rights violations. 116. Defendant NORMAN, acting under color of law, as the head supervisor of the Monroe County Code Enforcement Department, deprived ECHOLS of their rights secured under the Fifth and Fourteenth Amendments of the Constitution of the United States, including, but not limited to, the right to equal protection under the law and the right to substantive due process. 117. Up until September 20, 2007 (when the first code enforcement notice was sent to Andrus), NORMAN, with knowledge of Andrus's illegal, unpermitted improvements on the subject property, deliberately refrained from enforcing the Monroe County Code against Andrus so as to aid Andrus in her quest to keep the property appraised at a high value and to sell the property for substantial profit. 118. NORMAN intentionally treated Andrus more favorably than ECHOLS, who had requested, to no avail, to be able to use the abandoned cottage on the property, and whom Code Enforcement forced to completely board up the cottage so that no one could enter it. 119. NORMAN intentionally treated ECHOLS differently than the other similarly - situated owner and there is no rational basis for the difference in treatment. 120. Defendant's unconstitutional actions proximately caused damage to Plaintiffs as described in Paragraphs 91 through 94 hereinabove. 121. Plaintiffs have retained undersigned counsel for this action and are obligated to him for reasonable attorney's fees. 34 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 35 of 40 122. Defendant's commission of her wrongful actions entitles Plaintiffs to an award of punitive damages, as said actions were wanton, willful, and/or made with reckless disregard for Plaintiffs' rights. WHEREFORE, Plaintiffs respectfully request an award of compensatory damages and punitive damages against NORMAN individually plus costs, prejudgment interest, and attorney's fees pursuant to 42 U.S.C. § 1988. COUNT IV: CIVIL RIGHTS VIOLATIONS UNDER 42 U.S.C. § 1983 - MONROE COUNTY PROPERTY APPRAISER ERVIN A. HIGGS IN HIS OFFICIAL CAPACITY Plaintiffs reallege the allegations of Paragraphs 1 through 94 as if fully set forth herein, and further allege: 123. This is an action pursuant to 42 U.S.C. §1983 against MONROE COUNTY PROPERTY APPRAISER ERVIN A. HIGGS in his official capacity for constitutional rights violations. 124. HIGGS and/or other Monroe County PAO Staff (final policy maker(s)) collaborated with Andrus to create official annual appraisals of the property based on the property falsely being deemed "improved residential waterfront property", when the PAO knew that Andrus's improvements were all unpermitted and illegal and that the improved structure was unsafe, as shown by the fact that during ECHOLS's ownership, the PAO deemed the structure to "have salvage and scrap value only" and deemed the property to be "unusable". 125. Said yearly appraisals were intended to aid Andrus to "re-establish the taxable value to demonstrate the worth of the property" (see Trivette quote, Page 1 S, Paragraph SO hereinabove) and allow Andrus to have the opportunity to "let the proposed (bogus) `redevelopment plans' fall by the wayside" and nevertheless still have "a property with a half 35 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page W of 40 million dollar value on the property record that suggests a buildable lot." (See Lundstrom quote, Page 16, Paragraph 56 hereinabove.) 126. Said yearly appraisals were thus made with the intent to aid Andrus in "flipping" the property for a handsome profit. In so doing, the PAO intentionally discriminated between ECHOLS and Andrus in determining the value of the property. 127. The PAO intentionally treated Andrus more favorably than ECHOLS, who had requested, to no avail, an upward valuation of the S200.00 value the PAO slapped on the subject property after their purchase. 128. The PAO collaborated with and assisted Andrus regarding the yearly appraisals that Andrus desired, even to the extent that shortly after Andrus succeeded in obtaining her ROGO exemption (her other method for having the property considered a buildable lot), the PAO granted Andrus's request to decrease the value so she could save on property taxes, magically reducing it from $478,146 to $210,999. 129. The PAO knew that the natural characteristics and conditions of the subject property (including wetlands, mangroves, and other natural attributes) during the ECHOLS's ownership, causing the property to be deemed "unbuildable" during their ownership, were exactly the same as they were during Andrus's ownership, and that they continue to be the same today. 130. HIGGS intentionally treated ECHOLS differently than the other similarly -situated owners and there is no rational basis for the difference in treatment. 131. HIGGS was aware of said invidious discrimination between ECHOLS and Andrus and was deliberately indifferent to same. 36 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 37 of 40 132. HIGGS, in his official capacity, committed and/or allowed the wrongful actions taken against ECHOLS as described hereinabove, exhibiting deliberate indifference to their constitutional rights. 133. Alternatively, HIGGS was acting pursuant to the pervasive custom and policy of giving staff under his supervision unfettered discretion to commit acts and/or omissions with deliberate indifference to the constitutional rights of persons within MONROE COUNTY. 134. Said actions and/or omissions of HIGGS in his official capacity were the moving force behind the violation of Plaintiff s constitutional rights, including, but not limited to (a) the right to equal protection under the law, and (b) the right to substantive due process. 135. Defendant's unconstitutional actions proximately caused damage to Plaintiffs as described in Paragraphs 91 through 94 hereinabove. 136. Plaintiff has retained undersigned counsel for this action and is obligated to him for reasonable attorney's fees. WHEREFORE, Plaintiff seeks compensatory damages against Defendant MONROE COUNTY PROPERTY APPRAISER ERVIN A. HIGGS in his official capacity, plus costs, prejudgment interest, and attorney's fees pursuant to 42 U.S.C. § 1988. COUNT V: CIVIL RIGHTS VIOLATIONS UNDER 42 U.S.C. M83 - MONROE COUNTY PROPERTY APPRAISER HIGGS IN HIS INDIVIDUAL CAPACITY Plaintiffs reallege the allegations of Paragraphs 1 through 94 as if fully set forth herein, and further allege: 137. This is an action pursuant to 42 U.S.C. § 1983 against Defendant HIGGS in his individual capacity for constitutional rights violations. 138. Defendant HIGGS, individually, acting under color of law, as the supervisor of the Monroe County Property Appraiser's Office, deprived ECHOLS of their rights secured under the 37 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 38 of 40 Fifth and Fourteenth Amendments of the Constitution of the United States, including, but not limited to, the right to equal protection under the law and the right to substantive due process. 139. In each year of Andrus's ownership of the property, commencing in 2005 and continuing once a year in 2006, 2007, 2008, and 2009, HIGGS collaborated with Andrus to create official appraisals of the property based on the property falsely being deemed "improved residential waterfront property", when HIGGS knew that Andrus's improvements were all unpermitted and illegal and that the improved structure was unsafe, as shown by the fact that during ECHOLS's ownership, the PAO deemed the structure to "have salvage and scrap value only" and deemed the property to be "unusable". 140. Said yearly appraisals were intended to aid Andrus to "re-establish the taxable value to demonstrate the worth of the property" (see Trivette quote, Page 15, Paragraph 50 hereinabove) and allow Andrus to have the opportunity to "let the proposed (bogus) `redevelopment plans' fall by the wayside" and nevertheless still have "a property with a half million dollar value on the property record that suggests a buildable lot." (See Lundstrom quote, Page 16, Paragraph 56 hereinabove.) 141. Said yearly appraisals were thus made with the intent to aid Andrus in "flipping" the property for a handsome profit. In so doing, HIGGS intentionally discriminated between ECHOLS and Andrus in evaluating the value of the property. 142. HIGGS intentionally and invidiously treated Andrus more favorably than ECHOLS, who had requested, to no avail, an upward valuation of the $200.00 value the PAO slapped on the subject property after their purchase. 143. HIGGS collaborated with and assisted Andrus regarding the yearly appraisals that Andrus desired, even to the extent that shortly after Andrus succeeded in obtaining her ROGO 38 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 39 of 40 exemption (her other method for having the property considered a buildable lot), HIGGS granted Andrus's request to decrease the value so she could save on property taxes, magically reducing it from $478,146 to $210,999. 144. HIGGS knew that the natural characteristics and conditions of the subject property (including wetlands, mangroves, and other natural attributes) during the ECHOLS's ownership, causing the property to be deemed "unbuildable" during their ownership, were exactly the same as they were during Andrus's ownership, and that they continue to be the same today. 145. HIGGS intentionally treated ECHOLS differently than the other similarly -situated owners and there is no rational basis for the difference in treatment. 146. Defendant's unconstitutional actions proximately caused damage to Plaintiffs as described in Paragraphs 91 through 94 hereinabove. 147. Plaintiffs have retained undersigned counsel for this action and are obligated to him for reasonable attorney's fees. 148. Defendant's commission of his wrongful actions entitles Plaintiffs to an award of punitive damages, as said actions were wanton, willful, and/or made with reckless disregard for Plaintiffs' rights. WHEREFORE, Plaintiffs respectfully request an award of compensatory damages and punitive damages against HIGGS individually plus costs, prejudgment interest, and attorney's fees pursuant to 42 U.S.C. § 1988. DEMAND FOR JURY TRIAL 149. Plaintiffs demand a trial by jury as to all issues so triable. 39 Case 4:10-cv-10085-JEM Document 4 Entered on FLSD Docket 09/10/2010 Page 40 of 40 Respectfully submitted, /s/Charles M. Baron CHARLES M. BARON, ESQ. Fla. Bar No. 509825 Attorney for Plaintiffs Charles M. Baron, P.A. 2645 N.E. 207" Street Suite C Miami, FL 33180 Tel. 305-933-9292 Fax 305-933-9992 Email: cmb t)baronjustice.com 40 Rule 4-1.7. Conflict of Interest; Current Clients (a) Representing Adverse Interests. Except as provided in subdivision (b), a lawyer shall not represent a client if: (1) the representation of 1 client will be directly adverse to another client; or (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a conflict of interest under subdivision (a), a lawyer may represent a client if (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent represen- tation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a position adverse to another client when the lawyer represents both clients in the same proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing. (c) Explanation to Clients. When representation of multiple clients in a single matter is undertaken, the consulta- tion shall include explanation of the implications of the common representation and the advantages and risks in- volved. (d) Lawyers Related by Blood or Marriage. A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship. (e) Representation of Insureds. Upon undertaking the representation of an insured client at the expense of the in- surer, a lawyer has a duty to ascertain whether the lawyer will be representing both the insurer and the insured as clients, or only the insured, and to inform both the insured and the insurer regarding the scope of the representation. All other Rules Regulating The Florida Bar related to conflicts of interest apply to the representation as they would in any other situation. Amended July 23, 1992, effective Jan. 1, 1993 (605 So.2d 2523; Jan. 23, 2003, effective July 1, 2003 838 So2 1.140); March 23, 2006, effective May 22, 2006 (933 So.2d 417). COMMENT Loyalty to a client Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. Conflicts of interest can arise from the lawyer's responsibilities to another client, a former client or a third person, or from the lawyer's own interests. For specific rules regarding certain conflicts of interest, see rule 4-1.8. For former client conflicts of interest, see rule 4-1.9. For conflicts of interest involving prospective clients, sec rule 4-1.18. For definitions of "informed consent" and "confirmed in writing," see terminology. An impermissible conflict of interest may exist before representation is undertaken, in which event the rep- resentation should be declined. If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation. See rule 4-1.16. Where more than 1 client is involved and the lawyer withdraws because a conflict arises after representation, whether the lawyer may continue to repre- sent any of the clients is determined by rule 4-1.9. As to whether a client -lawyer relationship exists or, hav- ing once been established, is continuing, see comment to rule 4-1.3 and scope. As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that cli- ent's or another client's interests without the affected client's consent. Subdivision (a)(1) expresses that gen- eral rule. Thus, a lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not require consent of the respective clients. Subdivision (a)(1) applies only when the representation of 1 client would be directly adverse to the other and where the lawyer's responsibilities of loyalty and confiden- tiality of the other client might be compromised. Loyalty to a client is also impaired when a lawyer cannot consider, recommend, or cant' out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. The conflict in ef- fect forecloses alternatives that would otherwise be available to the client. Subdivision (a)(2) addresses such situations. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasona- bly should be pursued on behalf of the client. Consideration should be given to whether the client wishes to accommodate the other interest involved. Consultation and consent A client may consent to representation notwithstanding a conflict. However, as indicated in subdivision (a)(1) with respect to representation directly adverse to a client and subdivision (a)(2) with respect to mate- rial limitations on representation of a client, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent. When more than 1 client is involved, the question of conflict must be resolved as to each client. Moreover, there may be circumstances where it is impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and 1 of the clients refuses to consent to the disclosure ncces- sary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent. Lawyer's interests The lawyer's own interests should not be permitted to have adverse effect on representation of a client. For example, a lawyer's need for income should not lead the lawyer to undertake matters that cannot be handled competently and at a reasonable fee. See rules 4-1.1 and 4-1.5. If the probity of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. A lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed interest. Conflicts in litigation Subdivision (a)(1) prohibits representation of opposing parties in litigation. Simultaneous representation of parties whose interests in litigation may conflict, such as co -plaintiffs or co-defendants, is governed by subdivisions (a), (b) and (c). An impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party, or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defen- dants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than 1 co- defendant. On the other hand, common representation of persons having similar interests is proper if the risk of adverse effect is minimal and the requirements of subdivision (c) are met. Ordinarily, a lawyer may not act as advocate against a client the lawyer represents in some other matter, even if the other matter is wholly unrelated. However, there are circumstances in which a lawyer may act as advocate against a client. For example, a lawyer representing an enterprise with diverse operations may ac- cept employment as an advocate against the enterprise in an unrelated matter if doing so will not adversely affect the lawyer's relationship with the enterprise or conduct of the suit and if both clients consent upon consultation. By the same token, government lawyers in some circumstances may represent government employees in proceedings in which a government agency is the opposing party. The propriety of concurrent representation can depend on the nature of the litigation. For example, a suit charging fraud entails conflict to a degree not involved in a suit for a declaratory judgment concerning statutory interpretation. A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court. Interest of person paying for a lawyer's service A lawyer may be paid from a source other than the client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty to the client. See rule 4-1.8(f). For example, when an insurer and its insured have conflicting interests in a matter arising from a liability insur- ance agreement and the insurer is required to provide special counsel for the insured, the arrangement should assure the special counsel's professional independence. So also, when a corporation and its directors or employees are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors or employees, if the clients consent after consultation and the arrangement ensures the lawyer's professional independence. Other conflict situations Conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determining whether there is potential for adverse effect include the duration and intimacy of the law- yer's relationship with the client or clients involved, the functions being performed by the lawyer, the like- lihood that actual conflict will arise, and the likely prejudice to the client from the conflict if it does arise. The question is often one of proximity and degree. For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamen- tally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference of interest among them. Conflict questions may also arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circum- stances, a conflict of interest may arise. In estate administration the identity of the client may be unclear under the law of some jurisdictions. In Florida, the personal representative is the client rather than the estate or the beneficiaries. The lawyer should make clear the relationship to the parties involved. A lawyer for a corporation or other organization who is also a member of its board of directors should de- termine whether the responsibilities of the 2 roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer's resig- nation from the board, and the possibility of the corporation's obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's independence of professional judgment, the lawyer should not serve as a director. Conflict charged by an opposing party Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the rep- resentation. In litigation, a court may raise the question when there is reason to infer that the lawyer has ne- glected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment. See scope. Family relationships between lawyers Rule 4-1.7(d) applies to related lawyers who are in different firms. Related lawyers in the same firm are also governed by rules 4-1.9 and 4-1.10. The disqualification stated in rule 4-1.7(d) is personal and is not imputed to members of firms with whom the lawyers are associated. Representation of Insureds The unique tripartite relationship of insured, insurer, and lawyer can lead to ambiguity as to whom a lawyer represents. In a particular case, the lawyer may represent only the insured, with the insurer having the status of a non -client third party payor of the lawyer's fees. Alternatively, the lawyer may represent both as dual clients, in the absence of a disqualifying conflict of interest, upon compliance with applicable rules. Estab- lishing clarity as to the role of the lawyer at the inception of the representation avoids misunderstanding that may ethically compromise the lawyer. This is a general duty of every lawyer undertaking representa- tion of a client, which is made specific in this context due to the desire to minimize confusion and inconsis- tent expectations that may arise. Consent confirmed in writing or stated on the record at a hearing Subdivision (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing or clearly stated on the record at a hearing. With regard to being confirmed in writing, such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See terminology. If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See terminology. The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable oppor- tunity to consider the risks and alternatives and to raise questions and concerns. Rather, the writing is re- quired in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing. County Attorney RESOLUTION NO. 0 17 —2005 A RESOLUTION AUTHORIZING THE PAYMENT OF REASONABLE ATTORNEY'S FEES FOR REPRESENTATION OF COUNTY OFFICERS AND EMPLOYEES SUED FOR ACTIONS TAKEN IN THE COURSE AND SCOPE OF THEIR DUTIES WHEN THE OFFICE OF THE COUNTY ATTORNEY CANNOT PROVIDE REPRESENTATION. WHEREAS, the Office of the County Attorney is authorized by Section 2-358(a)(5) of the Monroe County Code to defend all current and former County officers and employees in their personal and official capacities, against any non-aiminal action, arising out of acts or omissions undertaken or omitted in the course of the performance of County business, and WHEREAS, the potential for a conflict of interest exists when a County officer or employee is named as a co-defendant or co-respondent with the Hoard of County Commissioners and/or any other County officer or employee, which might preclude the Office of the County Attorney from representing both parties in the litigation; and WHEREAS, the Rules of Professional Conduct regulating the practice of law In Florida placesconditions and limits on the dual representation of two or more clients when a potential conflict exists between the clients; and WHEREAS, Section 111.07 of Florida Statutes authorizes the County to provide an attorney to defend an officer or employee in any civil action arising from a complaint for damages or other injury suffered as a result of any act or omission arising out of and in the scope of his or her duties except for those acts undertaken in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. NOW THEREFORE; BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, THAT 52=n In the event that the Board, the County Attorney, or a court of competent jurisdiction determines that the Office of County Attorney is precluded by the Rules of Professional Conduct from defending a County officer or employee in a civil action arising out of an act or omission in the course of performing County duties or employment, that the Board of County Commissioners will pay reasonable attorney's fees and costs incurred by the employee in defense of that action within the limits set forth in F.S. 111.07 and as otherwise set forth herein. Section 2. When the Office of the County Attorney is precluded from representing the officer or employee due to a potential or actual conflict of interest, the employee shall retain an attorney of his or her choice. Any and all fees and costs determined by the Board or a court of competent jurisdiction to be in excess of the reasonable prevailing rate for similar services provided by attorneys practicing within Monroe County, Florida, shall be the sole responsibility of the officer or employee who retained that attorney or incurred those costs. Section 3. The Board shall not be liable for any fees and costs that are incurred by an officer or employee when the Rules of Professional Conduct do not prohibit representation of the officer or employee by the Office of County Attorney unless the Board consents prior to the engagement of that attorney. Section 4. Any attorney's fees paid from County funds on behalf of an officer or employee who is found to be personally liable by virtue of acting outside the scope of his or her employment or was acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, may be recovered by the County in a civil action against the officer or employee. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the 19th day of January, 2005. Mayor Spehar Mayor Pro Tem McCoy Issioner Nelson 3'~ � loner Neugent �L� ner Rice IANNY L..KOLHAGE, Clerk B beput9 Clerk Poway yes —yes-- yea yes BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By Z ' ' layor/Chairpe n MONROE COUNTY ATTORNEY A- 7AV'-M1 "-=AT B. SHILLINGER, JR. ;t ;rANT COUNTY ATTORNEY c.• 11 C7 r i j BOARD OF COUNTY COMNIISSIONERS AGENDA ITEM SUMMARY Meeting Date: 10/20/10 - KW Bulk Item: Yes X No Division: County AttomeX Staff Contact: Pedro Mercado, #3173 AGENDA ITEM WORDING: Approval of an Interlocal Agreement between the Navy and Monroe County to set forth the rights, responsibilities and obligations of each party for the abandonment process for Towhee Lane, Pelican Lane, Heron Drive, Flamingo Drive and Limkan Lane, Boca Chica Ocean Shores subdivision, and regarding a public utility easement and access easement. ITEM BACKGROUND: The Navy owns all but one parcel in the Boca Chica Ocean Shores subdivision on Geiger Key. The one parcel in the subdivisions that is not owned by the Navy is developed, privately owned, and serviced by a driveway which encroaches on 3 of the Navy owned parcels. Approximately 2 years ago, the Navy approached the County's Engineering Department about abandoning the platted Pelican Lane, which is undeveloped right-of-way, that leads to the one developed parcel. The Navy intends to restore the abutting parcels and the Pelican Lane right-of-way to wetlands as part of a required mitigation project. The Engineering Department informed the Navy that they would be required to provide an access easement to the developed parcel if Pelican Lane was abandoned because it represents the only public access to the parcel. To the best of anyone's knowledge, the platted Pelican Lane was never improved by either the subdivision developer or the County. To the best of anyone's knowledge, the driveway was built at about the same time the home was built in 1968. Beginning in the 1980's , the Navy began buying all of the remaining lots in Boca Chica Shores, however, no one involved in the sale transaction discovered the encroaching driveway which had since become the de -facto Pelican Drive. The encroaching driveway runs roughly in an east - west direction from Old Boca Chica Road across Navy owned parcels RE Xs 142910, 142920 and 143230, then emerges onto a portion of the platted Pelican Lane and ends at privately owned parcel Xs 143090 and 143100. As part of the County's sewer project, the County had intended on using the "de - facto" Pelican Lane to access parcel Xs 143090 and 143100 until it was discovered that the driveway was actually an encroachment. As a result, the sewer connection to the property has been postponed pending resolution of the encroachment. The Navy cannot complete its mitigation project until the County agrees to abandon the platted Pelican Lane, however, the County cannot abandon the platted Pelican Lane as it serves as the only legal access to the private residence located on parcel Xs 143090 and 143100. Nor can the County proceed with its sewer connection to the property until the issue of access to the property is resolved. PREVIOUS RELEVANT BOCC ACTION: None. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval. TOTAL COST: N/A INDIRECT COST: N/A BUDGETED: N/A DIFFERENTIAL OF LOCAL PREFERENCE: N/A COST TO COUNTY: N/A SOURCE OF FUNDS: N/A REVENUE PRODUCING: Yes No _ AMOUNT PER MONTH Year APPROVED BY: County Atty 4' OMB/Purchasing Risk Management DOCUMENTAITON: Included x Not Required DISPOSITION: AGENDA ITEM N. Revised 2/05 INTERLOCAL AGREEMENT MONROE COUNTY AND THE UNITED STATES GOVERNMENT DEPARTMENT OF THE NAVY This interlocal agreement is entered into this day of , 2010, pursuant to Florida Statute chapter 163.01, by and between Monroe County, a political subdivision of the State of Florida, (herein after "County") and the United States Government, Department of the Navy (hereinafter "Navy"). WHEREAS, Boca Chica Ocean Shores is a dedicated, platted subdivision in Monroe County and recorded within plat book 05, page 49 of the official records of Monroe County; and WHEREAS, pursuant to Florida Statute chapter 177.081(3), all streets, alleys, easements, rights -of ways, and public areas shown on such dedicated, platted subdivisions are deemed to be dedicated to the public for the uses and purposes thereon stated; and WHEREAS, the Navy owns all parcels which abut Towhee Lane, Heron Drive, Flamingo Drive, and Limkan Lane within the Boca Chica Ocean Shores Subdivision, and WHEREAS, the Navy owns all but two remaining parcels, Lots 1 and 2 of Block 15, which abut Pelican Lane within the Boca Chica Ocean Shores subdivision; and and WHEREAS, Lots 1 and 2 of Block 15, which abut Pelican Lane, are privately owned; WHEREAS, as part of a larger mitigation project, the Navy may, at its discretion, restore to its original, natural state portions of Boca Chica Ocean Shores subdivision which abut Towhee Lane, Pelican Lane, Heron Drive, Flamingo Drive, and Limkan Lane as shown on Plat Book 05, page 49 of the official records of the Monroe County; and WHEREAS, the Navy is willing to grant Monroe County an easement to install, service and maintain utility lines, and to provide public access to Lots 1 and 2 of Block 15, said easement to be revocable if the County fails to grant the Navy's road abandonment petition within one hundred eighty (180) days of last signature on this Agreement, and WHEREAS, the utility and public access easements will cross Lots 10 and 11 of Block 14, and Lot 15 of Block 15 (Exhibit A Legal Description and Survey), which are owned by the Navy; and 1 WHEREAS, in exchange for granting an easement to install, service and maintain utility lines, and to provide public access to Lots 1 and 2 of Block 15, the Navy requests that the County abandon Towhee Lane, Pelican Lane, Heron Drive, Flamingo Drive, and Limkan Lane; and WHEREAS, the County is willing to abandon Towhee Lane, Pelican Lane, Heron Drive, Flamingo Drive, and Limkan Lane in exchange for the Navy granting Monroe County an easement to install, service and maintain utility lines, and to provide access to Lots 1 and 2 of Block 15; and WHEREAS, the only affected property owner, has signed a letter of "No Objection" to the Navy's request for abandonment of Pelican Lane, and WHEREAS, by using the public utility easement granted by the Navy, the County will not have to install approximately 600 feet of wastewater collection line along Pelican Lane, allowing the County to realize a substantial savings in wastewater infrastructure construction costs; now therefore, IN CONSIDERATION of the mutual consideration and premises set forth below, the parties agree as follows: 1. STATEMENT OF INTENT This purpose of this agreement is to set forth the rights, responsibilities, and obligations of each party for the abandonment of Towhee Lane, Pelican Lane, Heron Drive, Flamingo Drive, and Limkan Lane in the Boca Chica Ocean Shores subdivision. 2. RESPONSIBI1,1TIES OF THE NAVY The Navy shall file a petition with all required documentation and payment of appropriate fee(s) with Monroe County, requesting that the County abandon Towhee Lane, Pelican Lane, Heron Drive, Flamingo Drive, and Limkan Lane. The Navy shall grant Monroe County a revocable access easement and a revocable public utility easement. The utility and public access easements will cross Lots 10, RE # 00142910-000000, and 11, RE # 00142920-000000, of Block 14, and Lot 15, RE # 00143230-000000, of Block 15, which are owned by the Navy. If the County does not abandon the platted streets within Boca Chica Ocean Shores Subdivision (to wit: Towhee Lane, Pelican Lane, Heron Drive, Flamingo Drive, and Limkan Lane) within one hundred eighty (180) days, the easements shall immediately be terminated upon written notice by the Navy after the expiration of 180 days cited. If the County does abandon the aforementioned platted streets within one hundred eighty (180) days, the utility and public easements shall become irrevocable. 3. RESPONSIBILITIES OF COUNTY The County shall process the Navy's petition for road abandonment, including the scheduling and advertisement of hearings. The County shall use good faith in the processing of the petition and shall not unreasonably deny the petition for abandonment of Towhee Lane, Pelican Lane, Heron Drive, Flamingo Drive, and Limkan Lane as shown on Plat Book 05, pages 48 and 49 of the official records of the Monroe County. 4. CONTINGENCY The abandonment of Towhee Lane, Pelican Lane, Heron Drive, Flamingo Drive, and Limkan Lane by the County to the Navy is contingent on Board of County Commission review following public and county staff input at an advertised hearing. The conversion of revocable access easement and a revocable public utility easement by the Navy to irrevocable easements is contingent on County approval of the abandonment petition within one hundred and eighty (180) days. 5. INSURANCE AND HOLD HARMLESS PROVISION 5.1 Insurance. The parties to this agreement stipulate that each is a state governmental agency as defined by Florida Statutes, and represents to the other that it has purchased suitable Public Liability, Vehicle Liability, and Workers' Compensation insurance, or is self -insured, in amounts adequate to respond to any and all claims under federal or state actions for civil rights violations, which are not limited by Florida Statutes chapters 440 and 768.28, as well as any and all claims within the limitations of Florida Statutes chapters 440 and 768.28„ arising out of the activities governed by this agreement. 5.2 Insurance. To the extent allowed by law, each party shall be responsible for any acts, or omissions, of negligence on the part of its employees, agents, contractors, and subcontractors, and shall defend, indemnify, and hold the other party, its officers and employees, agents and contractors, harmless from all claims, demands, causes of action, losses, costs and expenses of whatever type — including costs and fees incurred from any investigation, witness production, and legal representation - that arise out of or are K attributable to arising out of such actions or omissions. The purchase of the insurance does not release or vitiate either party's obligations under this paragraph. 5.3 Waiver. Notwithstanding the provisions of Florida Statutes chapter 768.28, the participation of the County and the Navy in this Agreement and the acquisition of any commercial liability insurance coverage, self-insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the County be required to contain any provision for waiver. 6. GOVERNING LAW, VENUE, INTERPRETATION, COSTS, AND FEES 6.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 6.2 Venue. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the County and the Navy agree that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. 6.3 Mandatory Mediation. The County and the Navy agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them, the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. The cost of such mediation will be equally divided by the parties. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. 7. SEVERABILITY If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement shall not be affected thereby, and each remaining term, covenant, condition, and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions, and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The County and the Navy agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. 8. BINDING EFFECT The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the County and the Navy and their respective legal representatives, successors, and assigns. 9. AUTHORITY Each party represents and warrants to the other that the execution, delivery, and performance of this Agreement have been duly authorized by all necessary County and Navy action, as required by law. 10. CLAIMS FOR FEDERAL OR STATE AID: The County and the Navy agree that each is, and shall be, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. 11. NON-DISCREMINATION The County and the Navy agree that there will be no discrimination against any person, and it is expressly understood that, upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of either Party, effective the date of the court order. The County and the Navy agree to comply with all Federal and Florida statutes and all local ordinances relating to nondiscrimination, as applicable. These include, but are not limited to, the following: (1) Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color, or national origin; (2) Title IX of the Education Amendment of 1972, as amended (20 USC ss.1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; (3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; (4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101-6107) which prohibits discrimination on the basis of age; (5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; (6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; (7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records; (8) Title VHI of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; (9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of disability; (10) Monroe County Code Ch. 13, Art. VI, prohibiting discrimination on the bases of race, color, sex, religion, disability, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; and (11) any other nondiscrimination provisions in any Federal or Florida statutes which may apply to either Party or the subject matter of this Agreement. 12. ADJUDICATION OF DISPUTES OR DISAGREEMENTS The County and the Navy agree that all disputes and disagreements shall be attempted to be resolved by meet -and -confer sessions between representatives of each party. If no resolution can he agreed upon within 30 days after the first meet -and -confer session, the unresolved issue(s) shall be discussed at a public meeting of the Board of County Commissioners. If the issue or issues are still not resolved to the satisfaction of the parties, then either party shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law. In the event any administrative or legal proceeding is subsequently instituted against either party relating to the formation, execution, performance, or breach of this Agreement, the County and the Navy agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement. The County and the Navy specifically agree, however, that neither party shall be required to enter into any arbitration proceedings related to this Agreement. 13. COVENANT OF NO INTEREST The County and the Navy covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with their performance under this Agreement and that the only interest of each is to perform and receive benefits as recited in this Agreement. C" 14. CODE OF ETHICS 14.1 County's Standard. of Conduct. The County agrees that officers and employees of the County recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Florida Statutes chapter 112.313, including, but not limited to, solicitation or acceptance of gifts, doing business with one's agency, unauthorized compensation, misuse of public position, conflicting employment or contractual relationship, and disclosure or use of certain information. 14.2 Declaration of Non -Hire. The Navy warrants that no former County officer or employee subject to the prohibition of Section 2 of ordinance No. 0101990 nor any County officer or employee in violation of Section 3 of Ordinance No. 010-1990 have been employed, retained, or otherwise acted on Navy's behalf for purposes of this Agreement or the subject matter therein. Navy warrants that no such former County officers or employees shall be employed or retained for the same. 14.3 Breach of Violation. For breach or violation of this provision, the non - breaching party may, at its discretion, terminate this Agreement without liability. 15. NO SOLICITATION/PAYMENT The County and the Navy warrant that, each in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of the provision, both parties agree that the non -breaching party shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. 16. PUBLIC ACCESS The County and the Navy shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and the Navy in conjunction with this Agreement. W 17. PRIVILEGES AND EMMUNITIES All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules, available pensions and relief, opportunities for disability and workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the County, when performing their respective functions under this Agreement within the territorial limits of the County, shall also apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. 18. NON -DELEGATION OF CONSTITUTIONAL OR STATUTORY DUTIES This Agreement is not intended to, nor shall it be construed as, relieving either party from any obligation or responsibility imposed upon the party by law, except to the extent of actual and timely performance thereof by that party, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the County, except to the extent permitted by the Florida Constitution, Florida statute, and Florida case law. 19. NON -RELIANCE BY NON-PARTIES: Except as provided for in this Agreement, no person or entity shall be entitled to rely upon the terms of this Agreement to enforce or attempt to enforce any third -party claim, entitlement, or benefit of any service or program contemplated hereunder. Except as provided for in this Agreement, the County and the Navy agree that neither the County, the Navy, nor any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. 20. ATTESTATIONS: The Navy agrees to execute any documents that the County may reasonably require to satisfy the terms of this Agreement, including a Public Entity Crime Statement, an Ethics Statement, and a Drug -Free Workplace Statement. f.? 21. NO PERSONAL LIABILITY No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of County or Navy in his or her individual capacity, and no member, officer, agent or employee of County or Navy shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. 22. EXECUTION IN COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. 23. SECTION HEADINGS Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. 24. TERMINATION 24.1 Termination Generally. The County and the Navy may treat the other party in default and terminate this Agreement immediately, without prior notice, upon failure of the other party to comply with any provision related to compliance with all laws, rules and regulations. This Agreement may be terminated by the either party due to breaches of other provisions of this Agreement if, after written notice of the breach is delivered, the other party does not cure the breach within 7 days following delivery of notice of breach. Any waiver of any breach of covenants herein contained shall not be deemed to be a continuing waiver and shall not operate to bar the non -breaching party from declaring forfeiture for any succeeding breach either of the same conditions or covenants or different conditions or covenants. 24.2 Failure to Grant Easement. If the Navy fails to grant the aforementioned easements to the County, the County may terminate this Agreement without prior notice. 24.3 Failure to Abandon Pelican Lane. If the County fails to grant the Navy's petition to abandon Pelican Lane at the publicly advertised hearing convened for such purposes within one hundred and eighty (180) days, the aforementioned easements shall immediately be terminated and the Navy may terminate this Agreement without prior notice. E 25. ASSIGNMENT The County and Navy may not assign this Agreement or assign or subcontract any of its obligations under this Agreement without the approval of the party; that is, the County's Board of County Commissioners and Commanding Officer, Naval Air Station, Key West respectively. All the obligations of this Agreement will extend to and bind the legal representatives, successors and assigns of the Navy and the County. 26. SUBORDINATION This Agreement is subordinate to the laws and regulations of the United States, the State of Florida, and the County, whether in effect on commencement of this Agreement or adopted after that date. 27. INCONSISTENCY If any item, condition or obligation of this Agreement is in conflict with other items in this Agreement, the inconsistencies shall be construed so as to give meaning to gravamen of this Agreement; that is, the County's abandonment of Pelican Lane in return for the Navy's grant of the aforementioned easement. 28. CONSTRUCTION This Agreement has been carefully reviewed by the Navy and the County. Therefore, this Agreement is not to be construed against any party on the basis of authorship. 29. NOTICES. Notices in this Agreement, unless otherwise specified, must be sent by certified mail to the following: County: County Administrator 1100 Simonton Street Key West, Florida 33040 30. FULL UNDERSTANDING Navy: Timothy T. Yonce NAVFAC Southeast Ajax Street, Bldg 135N P.O. Box 30 NAS Jacksonville, FL 32212-0030 This Agreement is the parties' final mutual understanding. It replaces any earlier agreements or understandings, whether written or oral. This Agreement cannot be modified or replaced except in a written amendment, duly executed by both parties. 10 31. EFFECTIVE DATE This Agreement will take effect on the —day of , 2010. In witness whereof, the parties hereto have caused these presents to be executed, on the day and year indicated below. (SEAL) Attest: Danny L. Kolhage, Clerk By: Deputy Clerk Date: COUNTY VIED AS ► HUAUu COU TY ATTORNEY BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA In Mayor/Chairman UNITED STATES GOVERNMENT CONCURRE NCE of this agreement BY: / PATRICK A. LEFERE Captain, U. S. Navy Commanding Officer Naval Air Stati n Kpy West, FL Date: - 4- 11 Legal Description Ingress/Egress and Utility Easement for Lots 1 and 2, Block 15 of Boca Chica Ocean Shores A strip of land, 20.00 feet in width, lying 10.00 feet on both sides of the following described centerline, Commence at the Southeast corner of Lot 10, Block 14, Boca Chica Ocean Shores, according to the Plat thereof as recorded in Plat Book 5, Page 49 of the Public Records of Monroe County, Florida, thence bear N20°36'23"E for a distance of 10.04 feet to the Point of Beginning; Thence bear N64°19'08"W for a distance of 192.66 feet; Thence bear N75°52'44"W for a distance of 31.30 feet; Thence bear S72°04'27"W for a distance of 45.32 feet; Thence bear N90°00'00"W 33.69 feet to a point on the Easterly boundary line of Lot 2 Block 15 of said Plat and the Point of Terminus. The sidelines of the above described strip of land shall be extended and shortened to terminate at East boundary lines of Lots 1 and 2, Block 15 and the East boundary line of Lot 10 Block 14, all in Boca Chica Ocean Shores, according to the Plat thereof as recorded in Plat Book 5, Page 49 of the Public Records of Monroe County, Florida. eea a•-: a �ti r a it 111 _ \ " 4bw h r''••s � bN-W a ~ � ' M A f j' Bigs eta an ""•h,,, i 6r Q ` •b"ryTb \ W 1eea2." 15, B= OWA OCEAN SHDRO W.lz.'NON +on Marnw�roan.ne e¢atlY - w Ow An Owed a neabN 1n pY Bma +w...u. 5• pw NB, of Ner Rm Rewmd mN Cmq. °•• "1 FWkb MAP OF BOUNDARY SURVEY _ tjR.E. RZECE, P.A. LOTS 1 6 2 BLOCK 15 ®—-••.-�--• RNNcaaowsunn.� po�nu BOCA CHICA OCEAN SHORES awa�amrro�,apBem°Hasa _ r� MK B®an-uo c m.r.0 m aman.lat .® a GP E z V x Z JONJ q CD th Z -S a LU F a) to .2 ^6 C5 cm 3 LL01 (or Iml uJ--) c% ccli )k u c3 CO 10 &. m r r- Ci cr, EA. v u mo u 0 0 Lu 0 18� <E to u E Q �,: ;- -3 ct SO Statutes & Constitution Mew Statutes: Online Sunshine Page I of I I r S - I ��O�I C3) Prior to approval by the appropriate governing body, the plat shall be reviewed for conformity to this chapter by a professional surveyor and mapper either employed by or under contract to the Local governing body, the costs of which shall be borne by the legal entity offering the plat for recordation, and evidence of such review must be placed on such plat. M Every plat of a subdivision filed for record must contain a dedication by the owner or owners of record. The dedication must be executed by all persons, corporations, or entities whose signature would be required to convey record fee simple title to the Lands being dedicated in the same manner in which deeds are reA,,,uired to be executed. ALI mort. agees havin�N-a-record-irvn, execute, in the same manner in which deeds are required to be executed, either the dedication contained on the plat or a separate instrument joining in and ratifying the plat and all dedications and reservations thereon, N Vfev q.. wr 1. T- -9Ik%W-W& IVA agoval of the ioverning bodv has been secured and recorded i-m connlialgeAj�ul deemed to have been dedicated to the public for the uses and purposes thereon stated. However, of construction or maintenance within such dedicated areas except when the obligation is voluntarily assumed by the governing body. I M W 1 3 http://Www.leg.state.fl.usISTATUTESlindex.cfhi?App_Mode=Display_Statute&URL=010... 10/5/2010 Statutes & Constitution :View Statutes: Online Sunshine Page 1 of 27 1 163.01 Florida Interlocal Cooperation Act of 1969. (1) This section shall be known and may be cited as the "Florida Interlocal Cooperation Act of 1969." (2) It is the purpose of this section to permit local governmental units to make the most efficient use of their powers by enabling them to cooperate with other localities on a basis of mutual advantage and thereby to provide services and facilities in a manner and pursuant to forms of governmental organization that will accord best with geographic, economic, population, and other factors influencing the needs and development of local communities. (3) As used in this section: (a) "Interlocal agreement" means an agreement entered into pursuant to this section. (b) "Public agency" means a political subdivision, agency, or officer of this state or of any state of the United States, including, but not limited to, state government, county, city, school district, single and multipurpose special district, single and multipurpose public authority, metropolitan or consolidated government, a separate legal entity or administrative entity created under subsection (7), an independently elected county officer, any agency of the United States Government, a federally recognized Native American tribe, and any similar entity of any other state of the United States. (c) "State" means a state of the United States. (d) "Electric project" means: if Any plant, works, system, facilities, and real property and personal property of any nature whatsoever, together with all parts thereof and appurtenances thereto, which is located within or without the state and which is used or useful in the generation, production, transmission, purchase, sale, exchange, or interchange of electric capacity and energy, including facilities and property for the acquisition, extraction, conversion, transportation, storage, reprocessing, or disposal of fuel and other materials of any kind for any such purposes. httn•//l1/•1)lll ]p" otntu In „o/QTATTTTT:C/;. A— ..f 7A-- — A-7-t-1— C+-+..+-D�TTDT _n1n 1n/c/rfnln Statutes & Constitution :View Statutes : Online Sunshine Page 2 of 27 2. Any interest in, or right to, the use, services, output, or capacity of any such plant, works, system, or facilities. 3. Any study to determine the feasibility or costs of any of the foregoing, including, but not limited to, engineering, legal, financial, and other services necessary or appropriate to determine the legality and financial and engineering feasibility of any project referred to in subparagraph 1. or subparagraph 2. (e) "Person" means: 1. Any natural person; 2. The United States; any state; any municipality, political subdivision, or municipal corporation created by or pursuant to the laws of the United States or any state; or any board, corporation, or other entity or body declared by or pursuant to the laws of the United States or any state to be a department, agency, or instrumentality thereof; 3. Any corporation, not -for -profit corporation, firm, partnership, cooperative association, electric cooperative, or business trust of any nature whatsoever which is organized and existing under the laws of the United States or any state; or 4. Any foreign country; any political subdivision or governmental unit of a foreign country; or any corporation, not -for -profit corporation, firm, partnership, cooperative association, electric cooperative, or business trust of any nature whatsoever which is organized and existing under the laws of a foreign country or of a political subdivision or governmental unit thereof. (f) "Electric utility" has the same meaning as in s. 361.11(2). (9) "Foreign public utility" means any person whose principal location or principal place of business is not located within this state; who owns, maintains, or operates facilities for the generation, transmission, or distribution of electrical energy; and who supplies electricity to retail or wholesale customers, or both, on a continuous, reliable, and dependable basis. "Foreign public utility" also means any affiliate or subsidiary of such person, the business of which is limited to the generation or transmission, or both, of electrical energy and activities reasonably incidental thereto. httn•//wxxnx7lao etnto fl nc/QTATTTT1PQ/;-,4---F-)A"- ..,.,,7e_71: ..1.... Q+-+..«,.D.TroT —nxn xA/C Inn In Statutes & Constitution :View Statutes : Online Sunshine Page 3 of 27 (h) "Local government liability pool" means a reciprocal insurer as defined in s. 629.021 or any self- insurance program created pursuant to s. 768.28(16), formed and controlled by counties or municipalities of this state to provide liability insurance coverage for counties, municipalities, or other public agencies of this state, which pool may contract with other parties for the purpose of providing claims administration, processing, accounting, and other administrative facilities. (4) A public agency of this state may exercise jointly with any other public agency of the state, of any other state, or of the United States Government any power, privilege, or authority which such agencies share in common and which each might exercise separately. (5) A joint exercise of power pursuant to this section shall be made by contract in the form of an interlocal agreement, which may provide for: (a) The purpose of such interlocal agreement or the power to be exercised and the method by which the purpose will be accomplished or the manner in which the power will be exercised. (b) The duration of the interlocal agreement and the method by which it may be rescinded or terminated by any participating public agency prior to the stated date of termination. (c) The precise organization, composition, and nature of any separate legal or administrative entity created thereby with the powers designated thereto, if such entity may be legally created. (d) The manner in which the parties to an interlocal agreement will provide from their treasuries the financial support for the purpose set forth in the interlocal agreement; payments of public funds that may be made to defray the cost of such purpose; advances of public funds that may be made for the purposes set forth in the interlocal agreements and repayment thereof; and the personnel, equipment, or property of one or more of the parties to the agreement that may be used in lieu of other contributions or advances. (e) The manner in which funds may be paid to and disbursed by any separate legal or administrative entity created pursuant to the interlocal agreement. (f) }ittn•//ainawz lan ot�tu FI -o/QT A TT T'rVC/:«.a—. f g)A «« Oa. -a --a_ O_T TT)T nl n t nip inns n Statutes & Constitution :View Statutes : Online Sunshine Page 4 of 27 A method or formula for equitably providing for and allocating and financing the capital and operating costs, including payments to reserve funds authorized by law and payments of principal and interest on obligations. The method or formula shall be established by the participating parties to the interlocal agreement on a ratio of full valuation of real property, on the basis of the amount of services rendered or to be rendered or benefits received or conferred or to be received or conferred, or on any other equitable basis, including the levying of taxes or assessments to pay such costs on the entire area serviced by the parties to the interlocal agreement, subject to such limitations as may be contained in the constitution and statutes of this state. (9) The manner of employing, engaging, compensating, transferring, or discharging necessary personnel, subject to the provisions of applicable civil service and merit systems. (h) The fixing and collecting of charges, rates, rents, or fees, where appropriate, and the making and promulgation of necessary rules and regulations and their enforcement by or with the assistance of the participating parties to the interlocal agreement. (1) The manner in which purchases shall be made and contracts entered into. U) The acquisition, ownership, custody, operation, maintenance, lease, or sale of real or personal property. (k) The disposition, diversion, or distribution of any property acquired through the execution of such interlocal agreement. (1) The manner in which, after the completion of the purpose of the interlocal agreement, any surplus money shall be returned in proportion to the contributions made by the participating parties. (m) The acceptance of gifts, grants, assistance funds, or bequests. (n) The making of claims for federal or state aid payable to the individual or several participants on account of the execution of the interlocal agreement. (o) l ++--//......— I-- �+.+- n ... /QTATT TT1C7Q/:..,7e_...0 7A.._. ....7. T: _.1 _. o---o_T MY -AIn 1nie I'll n1n Statutes & Constitution :View Statutes: Online Sunshine Page 5 of 27 The manner of responding for any liabilities that might be incurred through performance of the interlocal agreement and insuring against any such liability. (p) The adjudication of disputes or disagreements, the effects of failure of participating parties to pay their shares of the costs and expenses, and the rights of the other participants in such cases. (q) The manner in which strict accountability of all funds shall be provided for and the manner in which reports, including an annual independent audit, of all receipts and disbursements shall be prepared and presented to each participating party to the interlocal agreement. (r) Any other necessary and proper matters agreed upon by the participating public agencies. (6) An interlocal agreement may provide for one or more parties to the agreement to administer or execute the agreement. One or more parties to the agreement may agree to provide all or a part of the services set forth in the agreement in the manner provided in the agreement. The parties may provide for the mutual exchange of services without payment of any contribution other than such services. The parties may provide for the use or maintenance of facilities or equipment of another party on a cost - reimbursement basis. (7)(a) An interlocal agreement may provide for a separate legal or administrative entity to administer or execute the agreement, which may be a commission, board, or council constituted pursuant to the agreement. (b) A separate legal or administrative entity created by an interlocal agreement shall possess the common power specified in the agreement and may exercise it in the manner or according to the method provided in the agreement. The entity may, in addition to its other powers, be authorized in its own name to make and enter into contracts; to employ agencies or employees; to acquire, construct, manage, maintain, or operate buildings, works, or improvements; to acquire, hold, or dispose of property; and to incur debts, liabilities, or obligations which do not constitute the debts, liabilities, or obligations of any of the parties to the agreement. (c) No separate legal or administrative entity created by an interlocal agreement shall possess the power or authority to levy any type of tax within the boundaries of any governmental unit participating in the interlocal agreement, to issue any type of bond in its own name, or in any way to obligate financially a governmental unit participating in the interlocal agreement. However, any separate legal entity, the httn•//t:ninv lPa etatP fl ne/QTATTTTRQ/inAPY nfm9Ann mnAP—Tlicnlav QtafiitPRrTT112T —nI0 1 n Statutes & Constitution :View Statutes : Online Sunshine Page 6 of 27 membership of which consists only of electric utilities as defined in s. 361.11(2) and which is created for the purpose of exercising the powers granted by part II of chapter 361, the Joint Power Act, may, for the purpose of financing or refinancing the costs of an electric project, exercise all powers in connection with the authorization, issuance, and sale of bonds as are conferred by parts I, II, and III of chapter 159 or part II of chapter 166, or both. Any such entity may also issue bond anticipation notes, as provided by s. 215.431, in connection with the authorization, issuance, and sale of such bonds. All of the privileges, benefits, powers, and terms of parts I, II, and III of chapter 159 and part II of chapter 166, notwithstanding any limitations provided above, shall be fully applicable to such entity. In addition, the governing body of such legal entity may also authorize bonds to be issued and sold from time to time and delegate, to such officer, official, or agent of such legal entity as the governing body of such legal entity shall select, the power to determine the time; manner of sale, public or private; maturities; rate or rates of interest, which may be fixed or may vary at such time or times and in accordance with a specified formula or method of determination; and other terms and conditions as may be deemed appropriate by the officer, official, or agent so designated by the governing body of such legal entity. However, the amounts and maturities of such bonds and the interest rate or rates on such bonds shall be within the limits prescribed by the governing body of such legal entity in its resolution delegating to such officer, official, or agent the power to authorize the issuance and sale of such bonds. Bonds issued pursuant to this section may be validated as provided in chapter 75 and paragraph (15)(f). However, the complaint in any action to validate such bonds shall be filed only in the Circuit Court for Leon County. The notice required to be published by s. 75.06 shall be published only in Leon County, and the complaint and order of the circuit court shall be served only on the State Attorney of the Second Judicial Circuit and on the state attorney of each circuit in which a public agency participating in the electric project lies. Notice of such proceedings shall be published in the manner and at the time required by s. 75.06 in Leon County and in each county in which any portion of any public agency participating in the electric project lies. (d) Notwithstanding the provisions of paragraph (c), any separate legal entity created pursuant to this section and controlled by the municipalities or counties of this state or by one or more municipality and one or more county of this state, the membership of which consists or is to consist of municipalities only, counties only, or one or more municipality and one or more county, may, for the purpose of financing or refinancing any capital projects, exercise all powers in connection with the authorization, issuance, and sale of bonds. Notwithstanding any limitations provided in this section, all of the privileges, benefits, powers, and terms of part I of chapter 125, part II of chapter 166, and part I of chapter 159 shall be fully applicable to such entity. Bonds issued by such entity shall be deemed issued on behalf of the counties or municipalities which enter into loan agreements with such entity as provided in this paragraph. Any loan agreement executed pursuant to a program of such entity shall be governed by the provisions of part I of chapter 159 or, in the case of counties, part I of chapter 125, or in the case of municipalities and charter counties, part II of chapter 166. Proceeds of bonds issued by such entity may be loaned to counties or municipalities of this state or a combination of municipalities and counties, whether or not such counties or municipalities are also members of the entity issuing the bonds. The issuance of bonds by such entity to fund a loan program to make loans to municipalities or counties or a combination of municipalities and counties with one another for capital projects to be identified subsequent to the issuance of the bonds to fund such loan programs is deemed to be a paramount public purpose. Any entity so created may also issue bond anticipation notes, as provided by httra•//avavaa 1vm c+.tu fl—/QTATTT r Q/;—A-o -f 9A-- .,a. A—Tl:-1— Q+..+.+—jMTDT _n1n 1n/c/7nIn Statutes & Constitution :View Statutes : Online Sunshine Page 7 of 27 s. 215.431, in connection with the authorization, issuance, and sale of such bonds. In addition, the governing body of such legal entity may also authorize bonds to be issued and sold from time to time and may delegate, to such officer, official, or agent of such legal entity as the governing body of such legal entity may select, the power to determine the time; manner of sale, public or private; maturities; rate or rates of interest, which may be fixed or may vary at such time or times and in accordance with a specified formula or method of determination; and other terms and conditions as may be deemed appropriate by the officer, official, or agent so designated by the governing body of such legal entity. However, the amounts and maturities of such bonds and the interest rate or rates of such bonds shall be within the limits prescribed by the governing body of such legal entity and its resolution delegating to such officer, official, or agent the power to authorize the issuance and sale of such bonds. A local government self-insurance fund established under this section may financially guarantee bonds or bond anticipation notes issued or loans made under this subsection. Bonds issued pursuant to this paragraph may be validated as provided in chapter 75. The complaint in any action to validate such bonds shall be filed only in the Circuit Court for Leon County. The notice required to be published by s. 75.06 shall be published only in Leon County, and the complaint and order of the circuit court shall be served only on the State Attorney of the Second Judicial Circuit and on the state attorney of each circuit in each county where the public agencies which were initially a party to the agreement are located. Notice of such proceedings shall be published in the manner and the time required by s. 75.06 in Leon County and in each county where the public agencies which were initially a party to the agreement are located. Obligations of any county or municipality pursuant to a loan agreement as described in this paragraph may be validated as provided in chapter 75. (e)1. Notwithstanding the provisions of paragraph (c), any separate legal entity, created pursuant to the provisions of this section and controlled by counties or municipalities of this state, the membership of which consists or is to consist only of public agencies of this state, may, for the purpose of financing the provision or acquisition of liability or property coverage contracts for or from one or more local government liability or property pools to provide liability or property coverage for counties, municipalities, or other public agencies of this state, exercise all powers in connection with the authorization, issuance, and sale of bonds. All of the privileges, benefits, powers, and terms of s. 125.01 relating to counties and s. 166.021 relating to municipalities shall be fully applicable to such entity and such entity shall be considered a unit of local government for all of the privileges, benefits, powers, and terms of part I of chapter 159. Bonds issued by such entity shall be deemed issued on behalf of counties, municipalities, or public agencies which enter into loan agreements with such entity as provided in this paragraph. Proceeds of bonds issued by such entity may be loaned to counties, municipalities, or other public agencies of this state, whether or not such counties, municipalities, or other public agencies are also members of the entity issuing the bonds, and such counties, municipalities, or other public agencies may in turn deposit such loan proceeds with a separate local government liability or property pool for purposes of providing or acquiring liability or property coverage contracts. 2. Counties or municipalities of this state are authorized pursuant to this section, in addition to the authority provided by s. 125.01, part II of chapter 166, and other applicable law, to issue bonds for the purpose of acquiring liability coverage contracts from a local government liability pool. Any individual httw/Alinm:l iP[T etato fl ne/QTATTTT1C7Q/;.,.ao..Qa..a..a_O_TmT nIn Inminn.1n Statutes & Constitution :View Statutes: Online Sunshine Page 8 of 27 county or municipality may, by entering into interlocal agreements with other counties, municipalities, or public agencies of this state, issue bonds on behalf of itself and other counties, municipalities, or other public agencies, for purposes of acquiring a liability coverage contract or contracts from a local government liability pool. Counties, municipalities, or other public agencies are also authorized to enter into loan agreements with any entity created pursuant to subparagraph 1., or with any county or municipality issuing bonds pursuant to this subparagraph, for the purpose of obtaining bond proceeds with which to acquire liability coverage contracts from a local government liability pool. No county, municipality, or other public agency shall at any time have more than one loan agreement outstanding for the purpose of obtaining bond proceeds with which to acquire liability coverage contracts from a local government liability pool. Obligations of any county, municipality, or other public agency of this state pursuant to a loan agreement as described above may be validated as provided in chapter 75. Prior to the issuance of any bonds pursuant to subparagraph 1. or this subparagraph for the purpose of acquiring liability coverage contracts from a local government liability pool, the reciprocal insurer or the manager of any self-insurance program shalt demonstrate to the satisfaction of the Office of Insurance Regulation of the Financial Services Commission that excess liability coverage for counties, municipalities, or other public agencies is reasonably unobtainable in the amounts provided by such pool or that the liability coverage obtained through acquiring contracts from a local government liability pool, after taking into account costs of issuance of bonds and any other administrative fees, is less expensive to counties, municipalities, or special districts than similar commercial coverage then reasonably available. 3. Any entity created pursuant to this section or any county or municipality may also issue bond anticipation notes, as provided by s. 215.431, in connection with the authorization, issuance, and sale of such bonds. In addition, the governing body of such legal entity or the governing body of such county or municipality may also authorize bonds to be issued and sold from time to time and may delegate, to such officer, official, or agent of such legal entity as the governing body of such legal entity may select, the power to determine the time; manner of sale, public or private; maturities; rate or rates of interest, which may be fixed or may vary at such time or times and in accordance with a specified formula or method of determination; and other terms and conditions as may be deemed appropriate by the officer, official, or agent so designated by the governing body of such legal entity. However, the amounts and maturities of such bonds and the interest rate or rates of such bonds shall be within the limits prescribed by the governing body of such legal entity and its resolution delegating to such officer, official, or agent the power to authorize the issuance and sale of such bonds. Any series of bonds issued pursuant to this paragraph for liability coverage shall mature no later than 7 years following the date of issuance. A series of bonds issued pursuant to this paragraph for property coverage shall mature no later than 30 years following the date of issuance. CAI Bonds issued pursuant to subparagraph 1. may be validated as provided in chapter 75. The complaint in any action to validate such bonds shall be filed only in the Circuit Court for Leon County. The notice required to be published by s. 75.06 shall be published in Leon County and in each county which is an owner of the entity issuing the bonds, or in which a member of the entity is located, and the complaint and order of the circuit court shall be served only on the State Attorney of the Second Judicial Circuit htty://www.le2.state.fl.us/STATUTES/index.cfm?Ann mode-nisnlav tat„tP*T TRT =n1 n 1 ni5/1)( ) Statutes & Constitution :View Statutes: Online Sunshine Page 9 of 27 and on the state attorney of each circuit in each county or municipality which is an owner of the entity issuing the bonds or in which a member of the entity is located. S. Bonds issued pursuant to subparagraph 2. may be validated as provided in chapter 75. The complaint in any action to validate such bonds shall be filed in the circuit court of the county or municipality which will issue the bonds. The notice required to be published by s. 75.06 shall be published only in the county where the complaint is filed, and the complaint and order of the circuit court shall be served only on the state attorney of the circuit in the county or municipality which will issue the bonds. RI The participation by any county, municipality, or other public agency of this state in a local government liability pool shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered regarding such a local government liability pool be required to contain any provision for waiver. (f) Notwithstanding anything to the contrary, any separate legal entity, created pursuant to the provisions of this section, wholly owned by the municipalities or counties of this state, the membership of which consists or is to consist only of municipalities or counties of this state, may exercise the right and power of eminent domain, including the procedural powers under chapters 73 and 74, if such right and power is granted to such entity by the interlocal agreement creating the entity. (9)1. Notwithstanding any other provisions of this section, any separate legal entity created under this section, the membership of which is limited to municipalities and counties of the state, and which may include a special district in addition to a municipality or county or both, may acquire, own, construct, improve, operate, and manage public facilities, or finance facilities on behalf of any person, relating to a governmental function or purpose, including, but not limited to, wastewater facilities, water or alternative water supply facilities, and water reuse facilities, which may serve populations within or outside of the members of the entity. Notwithstanding s. 367.171(7), any separate legal entity created under this paragraph is not subject to Public Service Commission jurisdiction. The separate legal entity may not provide utility services within the service area of an existing utility system unless it has received the consent of the utility. 2. For purposes of this paragraph, the term: a. "Host government" means the governing body of the county, if the largest number of equivalent residential connections currently served by a system of the utility is located in the unincorporated area, or the governing body of a municipality, if the largest number of equivalent residential connections currently served by a system of the utility is located within that municipality's boundaries. http://www.leg.state.fl.usISTATUTES/index.cfm?App_mode=Display_Statute&URL--010... 10/5/2010 Statutes & Constitution :View Statutes : Online Sunshine Page 10 of 27 1 "Separate legal entity" means any entity created by interlocal agreement the membership of which is limited to two or more special districts, municipalities, or counties of the state, but which entity is legally separate and apart from any of its member governments. C. "System" means a water or wastewater facility or group of such facilities owned by one entity or affiliate entities. 9 "Utility" means a water or wastewater utility and includes every person, separate legal entity, lessee, trustee, or receiver owning, operating, managing, or controlling a system, or proposing construction of a system, who is providing, or proposes to provide, water or wastewater service to the public for compensation. 3. A separate legal entity that seeks to acquire any utility shall notify the host government in writing by certified mail about the contemplated acquisition not less than 30 days before any proposed transfer of ownership, use, or possession of any utility assets by such separate legal entity. The potential acquisition notice shall be provided to the legislative head of the governing body of the host government and to its chief administrative officer and shall provide the name and address of a contact person for the separate legal entity and information identified in s. 367.071(4)(a) concerning the contemplated acquisition. 4.a. Within 30 days following receipt of the notice, the host government may adopt a resolution to become a member of the separate legal entity, adopt a resolution to approve the utility acquisition, or adopt a resolution to prohibit the utility acquisition by the separate legal entity if the host government determines that the proposed acquisition is not in the public interest. A resolution adopted by the host government which prohibits the acquisition may include conditions that would make the proposal acceptable to the host government. Q If a host government adopts a membership resolution, the separate legal entity shall accept the host government as a member on the same basis as its existing members before any transfer of ownership, use, or possession of the utility or the utility facilities. If a host government adopts a resolution to approve the utility acquisition, the separate legal entity may complete the acquisition. If a host government adopts a prohibition resolution, the separate legal entity may not acquire the utility within that host government's territory without the specific consent of the host government by future resolution. If a host government does not adopt a prohibition resolution or an approval resolution, the separate legal entity may proceed to acquire the utility after the 30-day notice period without further notice. http://www.leg.state.fl.us/STATUTES/index.cfm?Avv,_mode=Disvlav Statute&URL--010... 10/5/2010 Statutes & Constitution :View Statutes: Online Sunshine Page 11 of 27 5. After the acquisition or construction of any utility systems by a separate legal entity created under this paragraph, revenues or any other income may not be transferred or paid to a member of a separate legal entity, or to any other special district, county, or municipality, from user fees or other charges or revenues generated from customers that are not physically located within the jurisdictional or service delivery boundaries of the member, special district, county, or municipality receiving the transfer or payment. Any transfer or payment to a member, special district, or other local government must be solely from user fees or other charges or revenues generated from customers that are physically located within the jurisdictional or service delivery boundaries of the member, special district, or local government receiving the transfer of payment. RI This section is an alternative provision otherwise provided by law as authorized in s. 4, Art. VIII of the State Constitution for any transfer of power as a result of an acquisition of a utility by a separate legal entity from a municipality, county, or special district. 7. The entity may finance or refinance the acquisition, construction, expansion, and improvement of such facilities relating to a governmental function or purpose through the issuance of its bonds, notes, or other obligations under this section or as otherwise authorized by law. The entity has all the powers provided by the interlocal agreement under which it is created or which are necessary to finance, own, operate, or manage the public facility, including, without limitation, the power to establish rates, charges, and fees for products or services provided by it, the power to levy special assessments, the power to sell or finance all or a portion of such facility, and the power to contract with a public or private entity to manage and operate such facilities or to provide or receive facilities, services, or products. Except as may be limited by the interlocal agreement under which the entity is created, all of the privileges, benefits, powers, and terms of s. 125.01, relating to counties, and s. 166.021, relating to municipalities, are fully applicable to the entity. However, neither the entity nor any of its members on behalf of the entity may exercise the power of eminent domain over the facilities or property of any existing water or wastewater plant utility system, nor may the entity acquire title to any water or wastewater plant utility facilities, other facilities, or property which was acquired by the use of eminent domain after the effective date of this act. Bonds, notes, and other obligations issued by the entity are issued on behalf of the public agencies that are members of the entity. r.1 Any entity created under this section may also issue bond anticipation notes in connection with the authorization, issuance, and sale of bonds. The bonds may be issued as serial bonds or as term bonds or both. Any entity may issue capital appreciation bonds or variable rate bonds. Any bonds, notes, or other obligations must be authorized by resolution of the governing body of the entity and bear the date or dates; mature at the time or times, not exceeding 40 years from their respective dates; bear interest at the rate or rates; be payable at the time or times; be in the denomination; be in the form; carry the registration privileges; be executed in the manner; be payable from the sources and in the medium or payment and at the place; and be subject to the terms of redemption, including redemption prior to htty://www.le2.state.fl.us/STATUTES/index.cfm?Ann mode=Dicnlav Stat»ti-*T TRT in1 n i omnni n Statutes & Constitution :View Statutes: Online Sunshine Page 12 of 27 maturity, as the resolution may provide. If any officer whose signature, or a facsimile of whose signature, appears on any bonds, notes, or other obligations ceases to be an officer before the delivery of the bonds, notes, or other obligations, the signature or facsimile is valid and sufficient for all purposes as if he or she had remained in office until the delivery. The bonds, notes, or other obligations may be sold at public or private sale for such price as the governing body of the entity shall determine. Pending preparation of the definitive bonds, the entity may issue interim certificates, which shall be exchanged for the definitive bonds. The bonds may be secured by a form of credit enhancement, if any, as the entity deems appropriate. The bonds may be secured by an indenture of trust or trust agreement. In addition, the governing body of the legal entity may delegate, to an officer, official, or agent of the legal entity as the governing body of the legal entity may select, the power to determine the time; manner of sale, public or private; maturities; rate of interest, which may be fixed or may vary at the time and in accordance with a specified formula or method of determination; and other terms and conditions as may be deemed appropriate by the officer, official, or agent so designated by the governing body of the legal entity. However, the amount and maturity of the bonds, notes, or other obligations and the interest rate of the bonds, notes, or other obligations must be within the limits prescribed by the governing body of the legal entity and its resolution delegating to an officer, official, or agent the power to authorize the issuance and sale of the bonds, notes, or other obligations. a Bonds, notes, or other obligations issued under this paragraph may be validated as provided in chapter 75. The complaint in any action to validate the bonds, notes, or other obligations must be filed only in the Circuit Court for Leon County. The notice required to be published by s. 75.06 must be published in Leon County and in each county that is a member of the entity issuing the bonds, notes, or other obligations, or in which a member of the entity is located, and the complaint and order of the circuit court must be served only on the State Attorney of the Second Judicial Circuit and on the state attorney of each circuit in each county that is a member of the entity issuing the bonds, notes, or other obligations or in which a member of the entity is located. Section 75.04(2) does not apply to a complaint for validation brought by the legal entity. 10. The accomplishment of the authorized purposes of a legal entity created under this paragraph is in all respects for the benefit of the people of the state, for the increase of their commerce and prosperity, and for the improvement of their health and living conditions. Since the legal entity will perform essential governmental functions in accomplishing its purposes, the legal entity is not required to pay any taxes or assessments of any kind whatsoever upon any property acquired or used by it for such purposes or upon any revenues at any time received by it. The bonds, notes, and other obligations of an entity, their transfer, and the income therefrom, including any profits made on the sale thereof, are at all times free from taxation of any kind by the state or by any political subdivision or other agency or instrumentality thereof. The exemption granted in this subparagraph is not applicable to any tax imposed by chapter 220 on interest, income, or profits on debt obligations owned by corporations. (h)1. Notwithstanding the provisions of paragraph (c), any separate legal entity consisting of an alliance, as defined in s. 395.106(2)(a), created pursuant to this paragraph and controlled by and whose members http://www.leg.state.fl.us/STATUTES/index.cfm?Ann mode=Disnlav Statute&URL--010___ 10/5/2010 Statutes & Constitution :View Statutes: Online Sunshine Page 13 of 27 consist of eligible entities comprised of special districts created pursuant to a special act and having the authority to own or operate one or more hospitals licensed in this state or hospitals licensed in this state that are owned, operated, or funded by a county or municipality, for the purpose of providing property insurance coverage as defined in s. 395.106(2)(b), for such eligible entities, may exercise all powers under this subsection in connection with borrowing funds for such purposes, including, without limitation, the authorization, issuance, and sale of bonds, notes, or other obligations of indebtedness. Borrowed funds, including, but not limited to, bonds issued by such alliance shall be deemed issued on behalf of such eligible entities that enter into loan agreements with such separate legal entity as provided in this paragraph. 2. Any such separate legal entity shall have all the powers that are provided by the interlocal agreement under which the entity is created or that are necessary to finance, operate, or manage the alliance's property insurance coverage program. Proceeds of bonds, notes, or other obligations issued by such an entity may be loaned to any one or more eligible entities. Such eligible entities are authorized to enter into loan agreements with any separate legal entity created pursuant to this paragraph for the purpose of obtaining moneys with which to finance property insurance coverage or claims. Obligations of any eligible entity pursuant to a loan agreement as described in this paragraph may be validated as provided in chapter 75. 0 Any bonds, notes, or other obligations to be issued or incurred by a separate legal entity created pursuant to this paragraph shall be authorized by resolution of the governing body of such entity and bear the date or dates; mature at the time or times, not exceeding 30 years from their respective dates; bear interest at the rate or rates, which may be fixed or vary at such time or times and in accordance with a specified formula or method of determination; be payable at the time or times; be in the denomination; be in the form; carry the registration privileges; be executed in the manner; be payable from the sources and in the medium of payment and at the place; and be subject to redemption, including redemption prior to maturity, as the resolution may provide. The bonds, notes, or other obligations may be sold at public or private sale for such price as the governing body of the separate legal entity shall determine. The bonds may be secured by such credit enhancement, if any, as the governing body of the separate legal entity deems appropriate. The bonds may be secured by an indenture of trust or trust agreement. In addition, the governing body of the separate legal entity may delegate, to such officer or official of such entity as the governing body may select, the power to determine the time; manner of sale, public or private; maturities; rate or rates of interest, which may be fixed or may vary at such time or times and in accordance with a specified formula or method of determination; and other terms and conditions as may be deemed appropriate by the officer or official so designated by the governing body of such separate legal entity. However, the amounts and maturities of such bonds, the interest rate or rates, and the purchase price of such bonds shall be within the limits prescribed by the governing body of such separate legal entity in its resolution delegating to such officer or official the power to authorize the issuance and sale of such bonds. http://www.leg.state.fl.us/STATUTES/index.cfm?App mode=Dist)lav Statute&URL--010... 10/5/2010 Statutes & Constitution :View Statutes: Online Sunshine Page 14 of 27 Bonds issued pursuant to this paragraph may be validated as provided in chapter 75. The complaint in any action to validate such bonds shall be filed only in the Circuit Court for Leon County. The notice required to be published by s. 75.06 shall be published in Leon County and in each county in which an eligible entity that is a member of an alliance is located. The complaint and order of the circuit court shall be served only on the State Attorney of the Second Judicial Circuit and on the state attorney of each circuit in each county in which an eligible entity receiving bond proceeds is located. 5. The accomplishment of the authorized purposes of a separate legal entity created under this paragraph is deemed in all respects for the benefit, increase of the commerce and prosperity, and improvement of the health and living conditions of the people of this state. Inasmuch as the separate legal entity performs essential public functions in accomplishing its purposes, the separate legal entity is not required to pay any taxes or assessments of any kind upon any property acquired or used by the entity for such purposes or upon any revenues at any time received by the entity. The bonds, notes, and other obligations of such separate legal entity, the transfer of and income from such bonds, notes, and other obligations, including any profits made on the sale of such bonds, notes, and other obligations, are at all times free from taxation of any kind of the state or by any political subdivision or other agency or instrumentality of the state. The exemption granted in this paragraph does not apply to any tax imposed by chapter 220 on interest, income, or profits on debt obligations owned by corporations. 91 The participation by any eligible entity in an alliance or a separate legal entity created pursuant to this paragraph may not be deemed a waiver of immunity to the extent of liability or any other coverage, and a contract entered regarding such alliance is not required to contain any provision for waiver. (8) If the purpose set forth in an interlocal agreement is the acquisition, construction, or operation of a revenue -producing facility, the agreement may provide for the repayment or return to the parties of all or any part of the contributions, payments, or advances made by the parties pursuant to subsection (5) and for payment to the parties of any sum derived from the revenues of such facility. Payments, repayments, or returns shall be made at any time and in the manner specified in the agreement and may be made at any time on or prior to the rescission or termination of the agreement or completion of the purposes of the agreement. (9)(a) All of the privileges and immunities from liability; exemptions from laws, ordinances, and rules; and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of any public agency when performing their respective functions within the territorial limits for their respective agencies shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, or employees extraterritorially under the provisions of any such interlocal agreement. (b) http://www.leg.state.fl.us/STATUTES/index.cfm?Ann mode=Disnlav Statute&i1RT -010 ., 10/5/2010 Statutes & Constitution :View Statutes: Online Sunshine Page 15 of 27 An interlocal agreement does not relieve a public agency of any obligation or responsibility imposed upon it by law except to the extent of actual and timely performance thereof by one or more of the parties to the agreement or any legal or administrative entity created by the agreement, in which case the performance may be offered in satisfaction of the obligation or responsibility. (c) All of the privileges and immunities from liability and exemptions from laws, ordinances, and rules which apply to the municipalities and counties of this state apply to the same degree and extent to any separate legal entity, created pursuant to the provisions of this section, wholly owned by the municipalities or counties of this state, the membership of which consists or is to consist only of municipalities or counties of this state, unless the interlocal agreement creating such entity provides to the contrary. All of the privileges and immunities from liability; exemptions from laws, ordinances, and rules; and pension and relief, disability, and worker's compensation, and other benefits which apply to the activity of officers, agents, employees, or employees of agents of counties and municipalities of this state which are parties to an interlocal agreement creating a separate legal entity pursuant to the provisions of this section shall apply to the same degree and extent to the officers, agents, or employees of such entity unless the interlocal agreement creating such entity provides to the contrary. (10)(a) A public agency entering into an interlocal agreement may appropriate funds and sell, give, or otherwise supply any party designated to operate the joint or cooperative undertaking such personnel, services, facilities, property, franchises, or funds thereof as may be within its legal power to furnish. (b) A public agency entering into an interlocal agreement may receive grants-in-aid or other assistance funds from the United States Government or this state for use in carrying out the purposes of the interlocal agreement. (11) Prior to its effectiveness, an interlocal agreement and subsequent amendments thereto shall be filed with the clerk of the circuit court of each county where a party to the agreement is located. However, if the parties to the agreement are located in multiple counties and the agreement under subsection (7) provides for a separate legal entity or administrative entity to administer the agreement, the interlocal agreement and any amendments thereto may be filed with the clerk of the circuit court in the county where the legal or administrative entity maintains its principal place of business. (12) Any public agency entering into an agreement pursuant to this section may appropriate funds and may sell, lease, give, or otherwise supply the administrative joint board or other legal or administrative entity created to operate the joint or cooperative undertaking by providing such personnel or services therefor as may be within its legal power to furnish. (13) http://www.leg.state.fl.us/STATUTES/index.cfm?Avn mode=Disnlav Statute&i 1Ri -010 .. 10/5/2010 Statutes & Constitution :View Statutes: Online Sunshine Page 16 of 27 The powers and authority granted by this section shall be in addition and supplemental to those granted by any other general, local, or special law. Nothing contained herein shall be deemed to interfere with the application of any other law. (14) This section is intended to authorize the entry into contracts for the performance of service functions of public agencies, but shall not be deemed to authorize the delegation of the constitutional or statutory duties of state, county, or city officers. (15) Notwithstanding any other provision of this section or of any other law except s. 361.14, any public agency of this state which is an electric utility, or any separate legal entity created pursuant to the provisions of this section, the membership of which consists only of electric utilities, and which exercises or proposes to exercise the powers granted by part 11 of chapter 361, the Joint Power Act, may exercise any or all of the following powers: (a) Any such public agency or legal entity, or both, may plan, finance, acquire, construct, reconstruct, own, lease, operate, maintain, repair, improve, extend, or otherwise participate jointly in one or more electric projects, which are proposed, existing, or under construction and which are located or to be located within or without this state, with any one or more of the following: 1. Any such legal entity; 2. One or more electric utilities; 3. One or more foreign public utilities; or 4. Any other person, if the right to full possession and to all of the use, services, output, and capacity of any such electric project during the original estimated useful life thereof is vested, subject to creditors' rights, in any one or more of such legal entities, electric utilities, or foreign public utilities, or in any combination thereof. Any such public agency or legal entity, or both, may act as agent or designate one or more persons, whether or not participating in an electric project, to act as its agent in connection with the planning, design, engineering, licensing, acquisition, construction, completion, management, control, operation, maintenance, repair, renewal, addition, replacement, improvement, modification, insuring, htti)://www.leR.state.fl.us/STATUTES/index.cfm?Ann mode=Disnlav StaMtP&irnr=nIn lomnn n Statutes & Constitution :View Statutes : Online Sunshine Page 17 of 27 decommissioning, cleanup, retirement, or disposal, or all of the foregoing, of such electric project or electric projects. (b)1. In any case in which any such public agency or legal entity, or both, participate in an electric project with any one or more of the following: :l Any such legal entity; L� One or more electric utilities; C. One or more foreign public utilities; or Any other person, and if the right to full possession and to all of the use, services, output, and capacity of any such electric project during the original estimated useful life thereof is vested, subject to creditors' rights, in any one or more of such legal entities, electric utilities, or foreign public utilities, or in any combination thereof, such public agency or legal entity, or both, may enter into an agreement or agreements with respect to such electric project with the other person or persons participating therein, and such legal entity may enter into an agreement or agreements with one or more public agencies who are parties to the interlocal agreement creating such legal entity. Any such agreement may be for such period, including, but not limited to, an unspecified period, and may contain such other terms, conditions, and provisions, consistent with the provisions of this section, as the parties thereto shall determine. In connection with entry into and performance pursuant to any such agreement, with the selection of any person or persons with which any such public agency or legal entity, or both, may enter into any such agreement, and with the selection of any electric project to which such agreement may relate, no such public agency or legal entity shall be required to comply with any general, local, or special statute, including, but not limited to, the provisions of s. 287.055, or with any charter provision of any public agency, which would otherwise require public bidding, competitive negotiation, or both. 2. Any such agreement may include, but need not be limited to, any or all of the following: a. Provisions defining what constitutes a default thereunder and providing for the rights and remedies of the parties thereto upon the occurrence of such a default, including, without limitation, the right to discontinue the delivery of products or services to a defaulting party and requirements that the remaining parties not in default who are entitled to receive products or services from the same electric http://www.leg.state.fl.us/STATUTES/index.cfm?Ann mode=Disnlav Statute&URL--010... 10/5/2010 Statutes & Constitution :View Statutes : Online Sunshine Page 18 of 27 project may be required to pay for and use or otherwise dispose of, on a proportionate or other basis, all or some portion of the products and services which were to be purchased by the defaulting party. 31 Provisions granting one or more of the parties the option to purchase the interest or interests of one or more other parties in the electric project upon such occurrences, and at such times and pursuant to such terms and conditions, as the parties may agree, notwithstanding the limitations on options in the provisions of any law to the contrary. C. Provisions setting forth restraints on alienation of the interests of the parties in the electric project. R Provisions for the planning, design, engineering, licensing, acquisition, construction, completion, management, control, operation, maintenance, repair, renewal, addition, replacement, improvement, modification, insuring, decommissioning, cleanup, retirement, or disposal, or all of the foregoing of such electric project by any one or more of the parties to such agreement, which party or parties may be designated in or pursuant to such agreement as agent or agents on behalf of itself and one or more of the other parties thereto or by such other means as may be determined by the parties thereto. e. Provisions for a method or methods of determining and allocating among or between the parties the costs of planning, design, engineering, licensing, acquisition, construction, completion, management, control, operation, maintenance, repair, renewal, addition, replacement, improvement, modification, insuring, decommissioning, cleanup, retirement, or disposal, or all of the foregoing with respect to such electric project. Provisions that any such public agency or legal entity, or both, will not rescind, terminate, or amend any contract or agreement relating to such electric project without the consent of one or more persons with which such public agency or legal entity, or both, have entered into an agreement pursuant to this section or without the consent of one or more persons with whom any such public agency or legal entity, or both, have made a covenant or who are third -party beneficiaries of any such covenant. a Provisions whereby any such public agency or legal entity, or both, are obligated to pay for the products and services of such electric project and the support of such electric project, including, without limitation, those activities set forth in sub -subparagraph d., without setoff or counterclaim and irrespective of whether such products or services are furnished, made available, or delivered to such public agency or legal entity, or both, or whether any electric project contemplated by such contract or agreement is completed, operable, or operating, and notwithstanding suspension, interruption, interference, reduction, or curtailment of the products and services of such electric project and http://www.leg.state.fl.us/STATUTES/index.cfm?Avn mode=Disnlav Statute&I1RI-=010... 10/5/2010 Statutes & Constitution :View Statutes : Online Sunshine Page 19 of 27 notwithstanding the quality, or failure, of performance of any one or more of the activities set forth in sub -subparagraph d. with respect to such electric project. h. Provisions that in the event of the failure or refusal of any such public agency or legal entity, or both, to perform punctually any specified covenant or obligation contained in or undertaken pursuant to any such agreement, any one or more parties to such agreement or any one or more persons who have been designated in such agreement as third -party beneficiaries of such covenant or obligation may enforce the performance of such public agency or legal entity by an action at law or in equity, including, but not limited to, specific performance or mandamus. Provisions obligating any such public agency or legal entity, or both, to indemnify, including, without limitation, indemnification against the imposition or collection of local, state, or federal taxes and interest or penalties related thereto, or payments made in lieu thereof, to hold harmless, or to waive claims or rights for recovery, including claims or rights for recovery based on sole negligence, gross negligence, any other type of negligence, or any other act or omission, intentional or otherwise, against one or more of the other parties to such agreement. Such provisions may define the class or classes of persons for whose acts, intentional or otherwise, a party shall not be responsible; and all of such provisions may be upon such terms and conditions as the parties thereto shall determine. Provisions obligating any such public agency or legal entity, or both, not to dissolve until all principal and interest payments for all bonds and other evidences of indebtedness issued by such public agency or legal entity, or both, have been paid or otherwise provided for and until all contractual obligations and duties of such public agency or legal entity have been fully performed or discharged, or both. k. Provisions obligating any such public agency or legal entity, or both, to establish, levy, and collect rents, rates, and other charges for the products and services provided by such legal entity or provided by the electric or other integrated utility system of such public agency, which rents, rates, and other charges shall be at least sufficient to meet the operation and maintenance expenses of such electric or integrated utility system; to comply with all covenants pertaining thereto contained in, and all other provisions of, any resolution, trust indenture, or other security agreement relating to any bonds or other evidences of indebtedness issued or to be issued by any such public agency or legal entity; to generate funds sufficient to fulfill the terms of all other contracts and agreements made by such public agency or legal entity, or both; and to pay all other amounts payable from or constituting a lien or charge on the revenues derived from the products and services of such legal entity or constituting a lien or charge on the revenues of the electric or other integrated utility system of such public agency. htty://www.leg.state.fl.us/STATUTES/index.cfm?Ann mode=Disnlav StatntP&I TRi -n1 n 1 n/inn1 n Statutes & Constitution :View Statutes : Online Sunshine Page 20 of 27 Provisions obligating such legal entity to enforce the covenants and obligations of each such public agency with which such legal entity has entered into a contract or agreement with respect to such electric project. fill Provisions obligating such legal entity not to permit any such public agency to withdraw from such legal entity until all contractual obligations and duties of such legal entity and of each such public agency with which it has entered into a contract or agreement with respect to such electric project have been fully performed, discharged, or both. n. Provisions obligating each such public agency which has entered into a contract or agreement with such legal entity with respect to an electric project not to withdraw from, or cause or participate in the dissolution of, such legal entity until all duties and obligations of such legal entity and of each such public agency arising from all contracts and agreements entered into by such public agency or legal entity, or both, have been fully performed, discharged, or both. Provisions obligating each such public agency which has entered into a contract or agreement with such legal entity or which has entered into a contract or agreement with any other person or persons with respect to such electric project to maintain its electric or other integrated utility system in good repair and operating condition until all duties and obligations of each such public agency and of each such legal entity arising out of all contracts and agreements with respect to such electric project entered into by each such public agency or legal entity, or both, have been fully performed, discharged, or both. 0 All actions taken by an agent designated in accordance with the provisions of any such agreement may, if so provided in the agreement, be made binding upon such public agency or legal entity, or both, without further action or approval by such public agency or legal entity, or both. Any agent or agents designated in any such agreement shall be governed by the laws and rules applicable to such agent as a separate entity and not by any laws or rules which may be applicable to any of the other participating parties and not otherwise applicable to the agent. (c) Any such legal entity may acquire services, output, capacity, energy, or any combination thereof only from: if An electric project in which it has an ownership interest; or 2. Any other source: http://www.leg.state.fl.us/STATUTES/index.cfm?Avv mode=Disvlav Statute&URL--010... 10/5/2010 Statutes & Constitution :View Statutes : Online Sunshine Page 21 of 27 a. To the extent of replacing the services, output, capacity, energy, or combination thereof of its share of an electric project when the output or capacity of such electric project is reduced or unavailable; or 2 At any time and in any amount for resale to any of its members as necessary to meet their retail load requirements. However, under sub -subparagraph 2.b., such legal entity may not purchase wholesale power for resale to any of its members from any electric utility as a result of any legal proceeding commenced by the legal entity or any of its members after January 1, 1982, before any state or federal court or administrative body, to the extent that such purchase or proceeding would involuntarily expand the responsibility of the electric utility to provide such wholesale power. (d) Any such legal entity may sell services, output, capacity, energy, or any combination thereof only to: 1. Its members to meet their retail load requirements; 2. Other electric utilities or foreign public utilities which have ownership interests in, or contractual arrangements which impose on such electric utilities or foreign public utilities obligations which are the economic equivalents of ownership interests in, the electric project from which such services, output, capacity, energy, or combination thereof is to be acquired; 3. Any other electric utility or foreign public utility to dispose of services, output, capacity, energy, or any combination thereof that is surplus to the requirements of such legal entity: fw If such surplus results from default by one or more of the members of such legal entity under a contract or contracts for the purchase of such services, output, capacity, energy, or combination thereof; and R7 If the revenues from such contract or contracts are pledged as security for payment of bonds or other evidences of indebtedness issued by such legal entity or if such revenues are required by such legal entity to meet its obligations under any contract or agreement entered into by such legal entity pursuant to paragraph (b); 4. http://www.leiz.state.fl.us/STATUTES/index.cfm?Avn mode=Disnlav Statute&IJRi -010. , 10/5/2010 Statutes & Constitution :View Statutes : Online Sunshine Page 22 of 27 Any other electric utility or foreign public utility for a period not to exceed 5 years from the later to occur of the date of commercial operation of, or the date of acquisition by such legal entity of any ownership interest in or right to acquire services, output, capacity, energy, or any combination thereof from, the electric project from which such services, output, capacity, energy, or combination thereof is to be acquired, if: a. One or more members of such legal entity have contracted to purchase such services, output, capacity, energy, or combination thereof from such legal entity commencing upon the expiration of such period; and M Such services, output, capacity, energy, or combination thereof, if acquired commencing at an earlier time, could have been reasonably predicted to create a surplus or surpluses in the electric system or systems of such member or members during such period, when added to services, output, capacity, energy, or any combination thereof available to such member or members during such period from facilities owned by such member or members or pursuant to one or more then -existing firm contractual obligations which are not terminable prior to the end of such period without payment of a penalty, or both; or S. Any combination of the above. Nothing contained in this paragraph shall prevent such legal entity from selling the output of its ownership interest in any such electric project to any electric utility or foreign public utility as emergency, scheduled maintenance, or economy interchange service. (e) All obligations and covenants of any such public agency or legal entity, or both, contained in any contract or agreement, which contract or agreement and obligations and covenants are authorized, permitted, or contemplated by this section, shall be the legal, valid, and binding obligations and covenants of the public agency or legal entity undertaking such obligations or making such covenants; and each such obligation or covenant shall be enforceable in accordance with its terms. (f) When contract payments by any such public agency contracting with any such legal entity or revenues of any such public agency contracting with any other person or persons with respect to an electric project are to be pledged as security for the payment of bonds or other evidences of indebtedness sought to be validated, the complaint for validation may make parties defendant to such action, in addition to the state and the taxpayers, property owners, and citizens of the county in which the complaint for validation is filed, including nonresidents owning property or subject to taxation therein: 1. http://www.leg.state.fl.us/STATUTES/index.cfm?ADD,mode=Disr)lav Statute&I JRi -010. , 10/5/2010 Statutes & Constitution :View Statutes: Online Sunshine Page 23 of 27 Every public agency the contract payments of which are to be so pledged. 2. Any other person contracting with such public agency or legal entity, or both, in any manner relating to such electric project, and particularly with relation to any ownership or operation of any electric project; the supplying of electrical energy to such public agency or legal entity, or both; or the taking or purchase of electrical energy from the electric project. 3. The taxpayers, property owners, and citizens of each county or municipality in which each such public agency is located, including nonresidents owning property or subject to taxation therein, and the holders of any outstanding debt obligations of any such public agency or legal entity. All such parties who are made defendants and over whom the court acquires jurisdiction in such validation proceedings shall be required to show cause, if any exists, why such contract or agreement and the terms and conditions thereof should not be inquired into by the court, the validity of the terms thereof determined, and the matters and conditions which are imposed on the parties to such contract or agreement and all such undertakings thereof adjudicated to be valid and binding on the parties thereto. Notice of such proceedings shall be included in the notice of validation hearing required to be issued and published pursuant to the provisions of paragraph (7)(c); and a copy of the complaint in such proceedings, together with a copy of such notice, shall be served on each party defendant referred to in subparagraphs 1. and 2. who is made a defendant and over whom the court acquires jurisdiction in such validation proceedings. Any person resident of this state or any person not a resident of, or located within, this state, whether or not authorized to transact business in this state, who contracts with any such public agency or legal entity, or both, in any manner relating to such electric project, may intervene in the validation proceedings at or before the time set for the validation hearing and assert any ground or objection to the validity and binding effect of such contract or agreement on his or her own behalf and on behalf of any such public agency and of all citizens, residents, and property owners of the state. No appeal may be taken by any person who was not a party of record in such proceedings at the time the judgment appealed from was rendered. An adjudication as to the validity of any such contract or agreement from which no appeal has been taken within the time permitted by law from the date of entry of the judgment of validation or, if an appeal is filed, which is confirmed on appeal shall be forever conclusive and binding upon such legal entity and all such parties who are made defendants and over whom the court acquires jurisdiction in such validation proceedings. (9) Each such public agency or legal entity, or both, which contracts with any other person or persons with respect to the ownership or operation of any electric project, and each such public agency which contracts with any legal entity for the support of, or supply of, power from an electric project, is authorized to pledge to such other person or persons or such legal entity, or both, for the benefit of such electric project all or any portion of the revenues derived or to be derived: 1. httn_//www.leQ.state.fl.us/STATUTES/index.cfm?Ann mode=Disnlav Statute&URL--010... 10/5/2010 Statutes & Constitution :View Statutes: Online Sunshine Page 24 of 27 In the case of any such public agency, from the ownership and operation of its electric or other integrated utility system; and PRI In the case of a legal entity, from the provision of products and services by it; and to pledge to such other person or persons or such legal entity, or both, for the benefit of such electric project any securities, contract rights, and other property. Each such legal entity is also authorized to pledge to, or for the benefit of, the holders of any bonds, notes, or other evidences of indebtedness issued by such legal entity, as security for the payment thereof, any revenues, securities, contract rights, or other property. Any such pledge shall specify the priority and ranking of such pledge in respect of other pledges, if any, of the same revenues, securities, contract rights, or other property by such public agency or legal entity. Any pledge of revenues, securities, contract rights, or other property made by any such public agency or legal entity, or both, pursuant to this section shall be valid and binding from the date the pledge is made. The revenues, securities, contract rights, or other property so pledged and then held or thereafter received by such public agency or legal entity, or any fiduciary, or such other person or persons shall immediately be subject to the lien of the pledge without any physical delivery thereof or further act; and the lien of the pledge shall be valid and binding as against all parties having claims of any kind in tort, in contract, or otherwise against the public agency or legal entity making such pledge, without regard to whether such parties have notice thereof. The resolution, trust indenture, security agreement, or other instrument by which a pledge is created need not be filed or recorded in any manner. (h) Any such legal entity is authorized and empowered to sue and be sued in its own name. In the event that any such public agency or legal entity enters into a contract or an agreement with respect to an electric project located in another state, or owns an interest in an electric project located in another state, an action against such public agency or legal entity may be brought in the federal or state courts located in such state. The provisions of this subsection shall be liberally construed to effect the purposes hereof. The powers conferred by the provisions of this subsection shall be in addition and supplementary to the powers conferred by the other provisions of this section, by any other general, local, or special law, or by any charter of any public agency. When the exercise of any power conferred on any public agency or any legal entity by the provisions of this subsection would conflict with any limitation or requirement upon such public agency or such legal entity contained in the other provisions of this section, in any other general, local, or special law, except s. 361.14, or in the charter of such public agency, such limitation or requirement shall be superseded by the provisions of this subsection for the purposes of the exercise of such power pursuant to the provisions of this subsection. httD://www.leiz.state.fl.us/STATUTES/index.cfm?A,pv ,. mode=Disvlay_$tatute&URL--010... 10/5/2010 Statutes & Constitution :View Statutes: Online Sunshine Page 25 of 27 While any bonds or other evidences of indebtedness issued by any such public agency or any such legal entity pursuant to the authority granted by paragraph (7)(c) or other applicable law remain outstanding, or while any such public agency or any such legal entity has any undischarged duties or obligations under any contract or agreement, including, but not limited to, obligations to any operator or joint owner of any electric project, the powers, duties, or existence of such public agency or such legal entity or of its officers, employees, or agents shall not be diminished, impaired, or affected in any manner which will affect materially and adversely the interests and rights of the owners of such bonds or other evidences of indebtedness or the persons to whom such duties or obligations are owed under such contract or agreement. The provisions of this subsection shall be for the benefit of the state, each such public agency, each such legal entity, every owner of the bonds of each such legal entity or public agency, and every other person to whom such public agency or such legal entity owes a duty or is obligated by contract or agreement; and, upon and after the earlier of the execution and delivery by any public agency or legal entity, pursuant to this section, of any contract or agreement to any person with respect to an electric project, or the issuance of such bonds or other evidences of indebtedness, the provisions of this subsection shall constitute an irrevocable contract by the state with the owners of the bonds or other evidences of indebtedness issued by such public agency or legal entity and with the other person or persons to whom any such public agency or legal entity owes a duty or is obligated by any such contract or agreement. (k) The limitations on waiver in the provisions of s. 768.28 or any other law to the contrary notwithstanding, the Legislature, in accordance with s. 13, Art. X of the State Constitution, hereby declares that any such legal entity or any public agency of this state that participates in any electric project waives its sovereign immunity to: 1. All other persons participating therein; and 2. Any person in any manner contracting with a legal entity of which any such public agency is a member, with relation to: a. Ownership, operation, or any other activity set forth in sub -subparagraph (b)2.d. with relation to any electric project; or 01 The supplying or purchasing of services, output, capacity, energy, or any combination thereof. Notwithstanding the definition of "electric project" contained in paragraph (3)(d), or any other provision of this subsection or of part II of chapter 361 limiting the parties which may participate jointly htty://www.leg. state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&URL--O 10... 10/5/2010 Statutes & Constitution :View Statutes: Online Sunshine Page 26 of 27 in electric projects, any public agency of this state which is an electric utility, or any separate legal entity created pursuant to the provisions of this section, the membership of which consists only of electric utilities, and which exercises or proposes to exercise the powers granted by part II of chapter 361, may exercise any or all of the powers provided in this subsection jointly with any other person with respect to the acquisition, extraction, conversion, use, transportation, storage, reprocessing, disposal, or any combination thereof of any primary fuel or source thereof, as well as any other materials resulting therefrom, only when such primary fuel or source thereof is to be used for the generation of electrical energy in one or more electric projects by such legal entity, any member thereof, or any combination thereof; and, in connection therewith, any such public agency or legal entity shall be deemed to have all the additional powers, privileges, and rights provided in this subsection. (m) In the event that any public agency or any such legal entity, or both, should receive, in connection with its joint ownership or right to the services, output, capacity, or energy of an electric project, as defined in paragraph (3)(d), any material which is designated by the person supplying such material as proprietary confidential business information or which a court of competent jurisdiction has designated as confidential or secret shall be kept confidential and shall be exempt from the provisions of s. 119.07 (1). As used in this paragraph, "proprietary confidential business information" includes, but is not limited to, trade secrets; internal auditing controls and reports of internal auditors; security measures, systems, or procedures; information concerning bids or other contractual data, the disclosure of which would impair the efforts of the utility to contract for services on favorable terms; employee personnel information unrelated to compensation, duties, qualifications, or responsibilities; and formulas, patterns, devices, combinations of devices, contract costs, or other information the disclosure of which would injure the affected entity in the marketplace. (16)(a) All of the additional powers and authority granted by chapter 82-53, Laws of Florida, to a public agency as defined in paragraph (3)(b), a legal entity created pursuant to the provisions of this section, or both, respecting agreements for participation in electric projects shall apply to any agreement in existence as of March 25, 1982, as well as to any such agreement entered into thereafter; but no additional limitation provided in chapter 82-53 upon any power or authority of any such public agency or legal entity, or both, respecting agreements for participation in electric projects shall apply to any such agreement entered into prior to March 25, 1982. (b) Chapter 82-53, Laws of Florida, shall be deemed to be enacted for the purpose of further implementing the provisions of s. 10(d), Art. VII of the State Constitution, as amended. (17) In any agreement entered into pursuant to this section, any public agency or separate legal entity created by interlocal agreement may, in its discretion, grant, sell, donate, dedicate, lease or otherwise convey, title, easements or use rights in real property, including tax -reverted real property, title to which is in such public agency or separate legal entity, to any other public agency or separate legal entity created by interlocal agreement. Any public agency or separate legal entity created by interlocal httn_//www.leg.state_fl.iis/STATTTTRS/index cfm9Ann mnr1P,T)icn1av 4tntntpArTTRT -nin iolr%nnin Statutes & Constitution :View Statutes: Online Sunshine Page 27 of 27 agreement is authorized to grant such interests in real property or use rights without consideration when in its discretion it is determined to be in the public interest. Real property and interests in real property granted or conveyed to such public agency or separate legal entity shall be for the public purposes contemplated in the interlocal agreement and may be made subject to the condition that in the event that said real property or interest in real property is not so used, or if used and subsequently its use for such purpose is abandoned, the interest granted shall cease as to such public agency or separate legal entity and shall automatically revert to the granting public agency or separate legal entity. History. ss. 1, 2, ch. 69-42; ss. 11, 18, 35, ch. 69-106; s. 1, ch. 79-24; ss. 1, 2, ch. 79-31; s. 61, ch. 79-40; s. 68, ch. 81-259; ss. 1, 7, 8, ch. 82-53; s. 45, ch. 83-217; s. 21, ch. 85-55; s. 1, ch. 87-9; s. 6, ch. 87-237; s. 46, ch. 88-130; ss. 33, 34, ch. 90-360; s. 83, ch. 91-45; s. 11, ch. 93-51; s. 896, ch. 95-147; s. 45, ch. 96- 406; s. 19, ch. 97-236; s. 61, ch. 99-2; s. 23, ch. 99-251; s. 1, ch. 2001-201; s. 72, ch. 2002-295; s. 156, ch. 2003-261; s. 10, ch. 2004-5; s. 1, ch. 2004-336; s. 6, ch. 2006-218; s. 1, ch. 2006-220; s. 1, ch. 2007- 1; s. 1, ch. 2007-90; s. 1, ch. 2008-43. http://www.leg.state.fl.us/STATUTES/index.cfm?Ann mode=Disnlav Statute&URL--010... 10/5/2010 0: N O C: a Mayor John Stormont Cr c ORDINANCE N0, 010-1990 ORDINANCE PROVIDING FOR DEFINITIONS; OVIDING THAT NO FORMER COUNTY OFFICER OR ►� - `' IgPLOYEE SHALL, WITHIN TWO YEARS OF LEAVING OFFICE OR EMPLOYMENT, LOBBY FOR ANOTHER PERSON OR BUSINESS ENTITY IN ANY APPEARANCE BEFORE OR COMMUNICATION WITH, A COUNTY BOARD, COMMISSION, ADVISORY BODY, DEPARTMENT, DIVISION, SPECIAL DISTRICT, OR BUREAU IN CONNECTION WITH ANY PROCUREMENT OF GOODS AND/OR SERVICES; PROVIDING FOR EXEMPTIONS; PROVIDING THAT, EXCEPT AS REQUIRED TO DIS- CHARGE OFFICIAL DUTY, NO COUNTY OFFICER OR EMPLOYEE SHALL, ON BEHALF OF ANY OTHER PERSON OR BUSINESS ENTITY MAKE AN APPEARANCE BEFORE, OR COMMUNICATION WITH, ANY COUNTY BOARD, COMMISSION, ADVISORY BODY, DEPARTMENT, DIVISION, SPECIAL DISTRICT OR BUREAU IN CONNECTION WITH ANY PROCUREMENT OF GOODS AND/OR SERVICES; PROVIDING FOR EXEMPTIONS; PROVIDING THAT ANY PERSON OR BUSINESS ENTITY WHICH HAS HAD A FORMER OFFICER OR EMPLOYEE SUBJECT TO THIS ORDINANCE OR COUNTY EMPLOYEE ACT ON ITS BEHALF IN CONNECTION WITH PROCURE- MENT OF GOODS AND/OR SERVICES SHALL BE INELIGIBLE FOR SUCH AWARD: PROVIDING THAT THE COUNTY MAY TERMINATE CONTRACTS ENTERED INTO IN VIOLATION OF THIS ORDINANCE WITHOUT LIABILITY AND MAY DEDUCT FROM THE CONTRACT OR PROCUREMENT PRICE, OR SEEK RECOVERY OF, ANY MONIES PAID TO FORMER COUNTY OFFICERS OR EMPLOYEES OR COUNTY EMPLOYEES BY A PERSON OR BUSINESS ENTITY TO ACT ON ITS BEHALF IN VIOLATION OF THIS ORDINANCE= PROVIDING FOR PENALTIES; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCORPORATION INTO THE MONROE COUNTY CODE; PROVIDING FOR REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; AND PROVID- ING FOR AN EFFECTIVE DATE. WHEREAS, the Board of County Commissioners of Monroe County directed the County Administrator to formulate a comprehensive set of policies for the purchase of goods and services, and WHEREAS, on April 19, 1988, the Board of County Commis- sioners of Monroe County, at a regular meeting, adopted a set of purchasing policies for Monroe County Board Departments and all dependent districts, and WHEREAS, according to those procedures, the Board of County Commissioners is required to approve purchases totalling in aggregate more than $10,000, without contract, and WHEREAS, according to those procedures, the Board of County Commissioners has delegated its authority to purchase totalling in aggregate less than $10,000, without contract, to the County Administrator, and WHEREAS, according to those procedures, the Board of County Commissioners has delegated its authority to purchase totalling in aggregate less than $1,000 to Department Heads, without contract, and WHEREAS, the Board of County Commissioners has reserved to itself the entering into of all contracts for goods and services, irregardless of amounts of those services, and WHEREAS, the Board of County Commissioners, through its employees exercising various levels of procurement, has delegated and entrusted their own public trust to those delegated such procurement powers, and WHEREAS, the Board of County Commissioners desires to further advance and instill procurement ethics within the govern- mental structure of Monroe County, NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, that the Board hereby adopts further requirements pertaining to Monroe County procure- ment ethics requirements to be applied to all purchases of goods and services for Monroe County, and hereafter applicable to any and all employees, departments, special districts, Councils, Boards or committees of the Board of County Commissioners of Monroe County or over which the Board of County Commissioners of Monroe County sits as governing body: Section 1. Definitions as used in this ordinance: a) "Advisory body" means any County board, commission, committee, council or authority, whose powers, jurisdiction and authority are solely advisory and do not include the final determination or adjudication of any personal or property rights, duties or obligations, other than those relating to its internal operations. A body with land planning, zoning, or natural resources responsibilities shall not be considered an advisory body. b) "Business entity" means any corporation, partnership, limited partnership, proprietorship, firm enterprise, franchise, association, self-employed individual, or trust, whether ficti- tiously named or not, doing business in the State of Florida. 2 c) An "employee" or "County employee" means any person employed by the County Commission, whether by contract or not, except those persons described in Section l(d) of this Ordinance. d) "Officer" or "County officer" means those persons defined in F.S. 112.3145(a)(3); elected members of the County Commission and any person appointed to fill a vacancy for an unexpired term of such; any person appointed to a County board, commission, authority, excluding independent special districts; or advisory bodies, serving under the County Commission. e) "Person" means a natural person. f) "Lobbying" means any degree of advocating by brand name or corporate name of any product or service, whether done through individual private or public personnel effort, with or without receiving, having received, or intending to receive funds from any source of such advocation. g) "Agent" means a person acting or doing business for another. Section 2. No former County officer or employee shall, within two years following vacation of office or termination of employment, lobby on behalf of any other person or business entity in any formal or informal appearance before, with the intent to influence, make any oral or written communication on behalf of any other person or business entity, to: a) Any board, commission, authority, or advisory body, of Monroe County; or b) Any department, division, special district or bureau of Monroe County, in connection with current or future procurement of goods and/or services. This section shall not apply in the case of collective bargaining or to officers or employees who vacated office or terminated employment prior to the effective date of this Ordi- nance. This section shall also not apply to any officer holding an elected office, or to an officer holding an appointment to any board, commission, or authority, on the effective date of this Ordinance except that, if such officer is elected or appointed for another term of office, which term commences after the effective date of this ordinance, then this section shall apply. Section 3. Except as required by statute, ordinance, resolution, rule, or custom for the proper discharge of official duty, no County officer, or employee shall, if elected or ap- pointed after the effective date of this ordinance, make a formal or informal appearance before, or, with the intent to influence, make any oral or written communication in connection with current or future procurement of goods and/or services, to: a) Any board, commission, authority, or advisory body, of Monroe County; or b) Any department, division, or bureau, of Monroe County. This section shall not apply in the case of collective bargaining. Section 4. Any person or business entity who has had act on his or its behalf in connection with any current or future procurement of goods and/or services: a) A former County officer or employee subject to the prohibition of Section 2 of this Ordinance; or b) A County officer or employee in violation of Section 3 of this Ordinance, shall be ineligible for the award for such goods and services. Section 5. The County shall have the right to terminate, at its discretion and without any liability, any procurement for goods and/or services awarded to any person or business entity who has had act on his or its behalf: a) A former County officer or employee subject to the prohibition of Section 2 of this Ordinance; or b) A County officer or employee in violation of Section 3 of this Ordinance. The County may also, in its discretion, deduct from the goods and/or services price, or otherwise recover, the full amount of any fee, commission, percentage, gift, or consid- eration, paid to the former County officer or employee or County officer or employee. Each contract entered into by the County shall contain the following language: V "(Person or business entity) warrants that he/it has not employed, retained or otherwise had act on his/its behalf any former County officer or employee subject to the prohibition of Section 2 of Ordinance No. 010-1990 or any County officer or employee in violation of Section 3 of Ordinance No. 010-1990. For breach or violation of this provision the County may, in its discretion, terminate this contract without liability and may also, in its discretion, deduct from the contract or purchase price, or otherwise recover, the full amount of any fee, commission, percentage, gift, or consideration paid to the former County officer or employee or County officer or employee." Secs 6• Any former County officer or employee who violates Section 2 of this Ordinance shall be prosecuted in the same manner as misdemeanors are prosecuted and, upon conviction, shall be punished by a fine not to exceed $500 or by imprison- ment in the County jail not to exceed 60 days or by both such fine and imprisonment. Section 7. Any County officer or employee who violates Section 3 of this Ordinance shall be prosecuted in the same manner as misdemeanors are prosecuted and, upon conviction, shall be punished by a fine not to exceed $500 or by imprison- ment in the County jail not to exceed sixty (60) days or by both such fine and imprisonment. Any County officer appointed to a board, commission or authority who violates Section 3 of this Ordinance may additionally be removed from office for cause. Any County officer enumerated in Sec. 112.3145(a)(3), F1a.Stat., who is not subject to career service under Chapter 2, Article III, Monroe County Code, and Chapter 69-1321, Laws of Florida, and who violates Section 3 of this Ordinance may be additionally discharged for cause. Any County officer subject to career service or an employee who violates Section 3 of this Ordinance shall have violated the standard of employment set forth in Sec. 2-142(12), Monroe County Code, and may additionally be subject to disciplinary action under Chapter 2, Division 9, Monroe 5 County Code, up to and including discharge. A conviction in County Court shall not be a condition precedent to removal from office, discharge or discipline. Section 8. If any section, subsection, sentence, clause or provision of this Ordinance is held invalid, the remainder of this Ordinance shall not be affected by such invalidity. Section 9. All ordinances or parts of ordinances in conflict with this Ordinance are hereby repealed to the extent of said conflict. Section 10. The provisions of this Ordinance shall be included and incorporated in the Code of Ordinances of the County of Monroe, Florida, as an addition or amendment thereto, and shall be appropriately renumbered to conform to the uniform numbering system of the Code. Section 11. This Ordinance shall take effect immediately upon receipt of official notice from the Office of the Secretary of State of the State of Florida that this Ordinance has been filed with said Office. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the 17th day of April, A.D., 1990. (SEAL) Attest:16$OLUAGE, Clerk er EFFECTIVE DATE: 6 BOARD OF COUNTY COMMISSIONERS OF MONROE CCOUNTY, FLORIDA y yor a rman FI " ANDFAMS1/E V. NY ' Attornoy's OHire %J `.r '~.�ouNrr ,yyr'4 ;M CoU,Q`f OG9� �annp �L. �olfjage BRANCH OFFICE CLERK OF THE CIRCUIT COURT 3117 OVERSEAS HIGHWAY MONROE COUNTY MARATHON, FLORIDA 33050 500 WHITEHEAD STREET TEL. (305) 743.9036 KEY WEST, FLORIDA 33040 TEL. 1305) 294-4641 May 1, 1990 CERTIFIED MAIL RETURN RECEIPT REQUESTED Mrs. Liz Cloud, Chief Bureau of Administrative Code and Laws Department of State The Capitol Tallahassee, Florida 32301 Dear Mrs. Cloud: BRANCH OFFICE P.O. BOX 379 PLANTATION KEY, FLORIDA 33070 TEL. (305) 852.9253 Enclosed please find a certified copy of Ordinance No. 10-1990, providing that no former County officer or employee shall, within two years of leaving office or employment, lobby for another person or business entity in any appearance before or communication with, a county board, commission, advisory body, department, division, special district or bureau in connection with and procurement of goods and or services. This Ordinance was adopted by the Monroe County Board of County Commissioners at a Regular Meeting in formal session on April 17, 1990. Please file for record. Sincerely, Danny L. Kolhage Clerk of the Circuit Court and ex Officio Clerk to the Board of County Commissioners By: ,�, Nancy Coh , Deputy Clerk cc: Municipal Code Corporation Mayor John Stormont Mayor Pro Tem Wilhelmina Harvey Commissioner Douglas Jones Commissioner Eugene Lytton Commissioner Michael Puto County Attorney, Randy Ludacer County Administrator, Tom Brown File t P 506 002 628 RECEIPIS4R'CERTIFIED MAIL NO INSURANCE COVERAGE PROVIDED NOT FOR INTERNATIONAL NAIL (See Reverse) N k 0 I d Special Delivery Fee ■ r 0 d P 506 002 629LJ4v RECEIPT FOR CERTIFIED MAIL NO INSURANCE COVERAYF9eR91/1W NOT FOR INTERNATIONAL MAIL (See Reverse) jN N No �•, �,�C� dP .. St and P Code 4 �Z n; / Postage Certified Fee Vr Special Delivery Fee Restrict 1 �ee Retu owing ' to Delivillvid Ret m- Dat 'TO ppWosta Postmark or 'Date ILL M fl FLORIDA DEPARTMENT OF STATE Jim Smith Secretary of State DIVISION OF ELECTIONS Room 1802, The Capitol Tallahassee, Florida 32399-0250 (904)488-8427 May 8, 1990 Honorable Danny L. Kolhage Clerk of Circuit Court Monroe County Courthouse 500 Whitehead Street Key West, Florida 33040 Attention: Nancy Cohen, Deputy Clerk Dear Mr. Kolhage: Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge your letter of May 1, 1990 and certified copy of Monroe County Ordinance No. 90-10, which was filed in this office on May 7, 1990. Sin erely, Liz Clou Chief Bureau of Administrative Code LC/mb MUNICIPAL CODE CORPORATION Supplement Department PC Box 2235 Tallahassee, FL 32316-2235 Code Supplement No. 39 05/07/9a We have received the following material. Thank you for your assistance and cooperation. Ordinance Nos. 010-1990, o11-1990, 012.1990, 013-1990, 014-1990 and 018-1990. 1-80-262-CODE (National) MR 1-800-342-CODE (Florida) MA z V OS Q MAY -7'. :r _ ._ i A L! S I R To. Ms. Rosalie L. Connolly Deputy Clerk Monroe County P.C. Boy 1980 Key Nest, FL 33040 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: October 20, 2010 Bulls Item: Yes^ No X Division: Growth Management Staff Contact Person: Department: Planning & Environmental Resources Christine Hurley, AICP, Director of Growth Management AGENDA ITEM WORDING: A public hearing to consider a Settlement Agreement pursuant to F.S. Sec. 163.3184(16) with the Florida Department of Community Affairs, Monroe County, and Rudolph and Roseann Krause in DOAH Case No. 09- 4153GM providing for a remedial comprehensive plan text amendment and Future Land Use Map (FLUMap) amendment to create a sub -area in the future land use element of the Monroe County Year 2010 Comprehensive Plan to be known as the Ramrod Key Mixed Use Area 1 and specifying regulations that allow development to occur subject to limitations and conditions designed to protect natural resources for a portion of RE # 00114150-000000 (8.46 acres) and all of RE # 00114150-000400 (2.6 acres); designating 11.06 acres of the site Ramrod Key Mixed Use Area 1 on the FLU map; and requiring a conservation easement on approximately 8.87 acres of wetlands within the Easterly portion of parcel 00114150-000000 (which is not subject to the Ramrod Key Mixed Use Area 1) and will remain RC. ITEM BACKGROUND: Rudolph and Roseann Krause filed an application for a comprehensive plan amendment to amend a portion of RE number 00114150-000000 (8.46 acres) and all of RE number 00114150-000400 (2.6 acres) Future Land Use Map (FLUM) designation from Residential Low (RL) to Mixed Use / Commercial (MC) on April 29, 2008. The DCA sent its Objections, Recommendations and Comments (ORC) to the 09-01 Monroe County Comprehensive Plan Amendment package on April 7, 2009. Monroe County adopted the proposed amendment by Ordinance 018-2009 on June 2, 2009. The Florida Department of Community Affairs (DCA) issued its Statement of Intent finding the amendment not in compliance on July 24, 2009. A settlement agreement is being proposed. As part of the settlement agreement, the Ramrod Key Mixed Use Area 1 Policy 107.1.2 is being created. Policy 107.1.2 creates specific limitations for densities and intensities on a portion of RE # 00114150-000000 (8.46 acres) and all of RE # 00114150-000400 (2.6 acres) for a total of 11.06 acres to be designated Ramrod Key Mixed Use Area 1. The policy includes a conservation easement requirement over a portion of RE # 00114150-000000 (approx. 8.87 acres) which shall remain Residential Conservation (RC). PREVIOUS RELEVANT BOCC ACTION: January 26, 2009-the BOCC transmitted Resolution 2009-003 to the Florida Department of Community Affairs (DCA) amending the Future Land Use Map (FLUM) designation from Residential Low (RL) to Mixed Use Commercial (MC) on the entire parcel of RE # 00114150-000400 (2.6 acres) and on a portion of RE # 00114150-000000 (8.46 acres). June 2, 2009-the amendment was adopted by the BOCC by Ordinance 018-2009. CONTRACT/AGREEMENT CHANGES: None STAFF RECOMMENDATIONS: Approval TOTAL COST: $0.00 INDIRECT COST: 0.00 BUDGETED: Yes No COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year APPROVED BY: County Atty OMB/Purchasmg Risk Management DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM # Revised 1/09 I MEMORANDUM 2 MONROE COUNTY GROWTH MANAGEMENT DIVISION 3 We strive to be caring, professional and fair To: Board of County Commissioners From: Townsley Schwab, Director of Planning and Environmental Resources Thru: Christine Hurley, AICP, Growth Management Director 4 Date: October 5, 2010 5 RE: A Public Hearing Concerning the Settlement Agreement in 6 DOAH Case No. 09-4153GM 7 Board of County Commissioners Meeting October 20, 2010 8 PROPOSAL: 9 A public hearing to consider a Settlement Agreement pursuant to F.S. Sec. 163.3184(16) with 10 the Florida Department of Community Affairs, Monroe County, and Rudolph and Roseann 11 Krause in DOAH Case No. 09-4153GM providing for a remedial comprehensive plan text 12 amendment and Future Land Use Map (FLUMap) amendment to create a sub -area in the future 13 land use element of the Monroe County Year 2010 Comprehensive Plan to be known as the 14 Ramrod Key Mixed Use Area 1 and specifying regulations that allow development to occur 15 subject to limitations and conditions designed to protect natural resources for a portion of RE # 16 00114150-000000 (8.46 acres) and all of RE # 00114150-000400 (2.6 acres); designating 11.06 17 acres of the site Ramrod Key Mixed Use Area i on the FLU map; and requiring a conservation 18 easement on approximately 8.87 acres of wetlands within the Easterly portion of parcel 19 00114150-000000 (which is not subject to the Ramrod Key Mixed Use Area 1) and will remain 20 RC. 21 22 BACKGROUND: 23 Rudolph and Rosearm Krause filed an application for a comprehensive plan amendment to 24 amend a portion of RE # 00114150-000000 (8.46 acres) and all of RE # 00114150-000400 (2.6 25 acres) Future Land Use Map (FLUM) designation from Residential Low (RL) to Mixed Use f 26 Commercial (MC) on April 29, 2008. The DCA sent its Objections, Recommendations and 27 Comments (ORC) to the 09-01 Monroe County Comprehensive Plan Amendment package on 28 April 7, 2009. Monroe County adopted the proposed amendment by Ordinance 018-2009 on 29 June 2, 2009. The Florida Department of Community Affairs (DCA) issued its Statement of 30 Intent finding the amendment not in compliance on July 24, 2009. A settlement agreement is 31 being proposed. As part of the settlement agreement, the Ramrod Key Mixed Use Area 1 Policy 32 107.1.2 is being created. Policy 107.1.2 creates specific limitations for densities and intensities 33 on a portion of RE # 00114150-000000 (8.46 acres) and all of RE # 00114150-000400 (2.6 P. 1 of 2 BOCC: October 20, 2010 Settlement Agreement Exhibit A — Statement of Intent Exhibit B — Sub -Area Policy Exhibit B-I — DCA's Aerial Conservation Easement with Berm Exhibit B-2 — Monroe County's MapMiagram Conse bon Easement with Berm Exhibit C — Future Land Use Map of Ramrod Key Mixed Use Ara I Exhibit D — Conservation Easement I acres) for a total of 11.06 acres to be designated Ramrod Key Mixed Use Area 1. The policy 2 includes a conservation easement requirement over a portion of RE # 00114150-000000 (approx. 3 8.87 acres) which shall remain Residential Conservation (RC). 4 5 6 PROPOSED ACTION: 7 The DCA, Rudolph and Roseann Krause, the Intervenors, and Monroe County have agreed on 8 the terms of the Settlement Agreement, the subject of this public hearing. 9 10 The Settlement Agreeement includes: 11 • Proposed text to be added to the Monroe County Comprehensive Plan designating the 12 boundaries of the Ramrod Key Mixed Use Area 1 on 11.06 acres and specifying 13 regulations that allow development to occur; 14 • Conditions designed to protect natural resources which include the construction of a 15 berm on RE # 00114150-000000, which protects the wetlands from stormwater 16 runoff, disturbance and development; 17 ® A conservation easement on a portion of RE # 00114150-000000 (8.87 acres); 18 ® An amendment to the Future Land Use Map delineating the boundaries of the 19 Ramrod Key Mixed Use Area 1 (11.06 acres). 20 21 RECO ENDATION: 22 Staff recommends approval. 23 P. 2 of 2 BOW October 20, 2010 Settlement Agreement Exhibit A - Statement of Intent Exhibit B - sub -Area Policy Exhibit B-1 - DCA's Aerial Conservation Easement with Berm Exhibit B-2 Monroe County's MapT agram Conservation Easement with Berm Exhibit C Future Land Use Map of Ramrod Key Mixed Use Area 1 Exhibit D - Conservation Easement STATE OF 1' 1 DIVISION OF ADMINISTRATIVEf , Petitioner' VS. MONROE COUNTY, Respondent, and Intervenors. STIPULATED SETTLEMENT AGREEMENT THIS STIPULATED SETTLEMENT AGREEMENT is entered into by and between the Petitioner, DEPARTMENT OF COMMUNITY AFFAIRS, Respondent, MONROE COUNTY, and Intervenors, RUDOLPH AND ROSEANN KRAUSE, as a complete and final settlement of all claims raised in the above -styled proceeding. RECITALS WHEREAS, the State of Florida, Department of Community Affairs (hereafter "DCA" or "Department"), is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes; and WHEREAS, Monroe County is a local government with the duty to adopt comprehensive plan amendments that are in compliance; and WHEREAS, Rudolph and Roseann Krause (hereafter "Krause") are the owners of real property located on Ramrod Key in Monroe County, on which they conduct ongoing business activities; and WHEREAS, Krause filed an application for a comprehensive plan amendment to amend the subject property's Future Land Use Map (FLUM) designation from Residential Low (RL) to Mixed Use/Commercial (MC); and WHEREAS, Monroe County adopted the requested amendment in Ordinance Number 018-2009 on June 2, 2009; and WHEREAS, the Department issued its Statement of Intent finding the amendment not in compliance pursuant to Section 163.3184(10), Florida Statutes, and Rule 9J-11.012(6), F.A.C.; and WHEREAS, Monroe County and Krause contend that the amendment is in compliance; and WHEREAS, the above -styled proceeding was initiated pursuant to Section 163.3184(10), Florida Statutes; and WHEREAS, the parties wish to avoid the expense, delay, and uncertainty of lengthy litigation and to resolve this proceeding under the terms set forth herein, and agree it is in their respective mutual best interests to do so; NOW, THEREFORE, in consideration of the mutual covenants and promises set forth below, and in consideration of the benefits that will accrue to each of the parties, the receipt and sufficiency of which are hereby acknowledged, the parties hereby represent and agree as follows: 19 1. Definitions. As used in this agreement, the following words and phrases shall have the following meanings: a. Act: The Local Government Comprehensive Planning and Land Development Regulation Act, as codified in Part II, Chapter 163, Florida Statutes. b. Agreement: This stipulated settlement agreement. Comprehensive Plan Amendment or Plan Amendment: the Comprehensive plan amendment adopted by Monroe County on June 2, 2009, as Ordinance No. 018-2009. d. DOAH: The Florida Division of Administrative Hearings. e. In compliance or into compliance: The meaning set forth in Section 163.3184(1)(b), Florida Statutes. f. Notice: The STATEMENT OF INTENT TO FIND COMPREHENSIVE PLAN AMENDMENTS NOT IN COMPLIANCE, Docket No. 09-1 -NOI-4401 -(A)-(N) issued by the Department. g. Proceeding: The above -styled proceeding initiated pursuant to Section 163.3184(10) by the Department's publication of its Notice in this case. Remedial Action: A remedial plan amendment, submission of support document or other action described in this agreement as an action which must be completed to bring resolution to the issues in the pending action and bring the plan amendment into compliance. Remedial Plan Amendment: An amendment to the plan or support document, the need for which is identified in this agreement, including its exhibits, and which the local government must adopt to complete all remedial actions. Remedial plan amendments adopted 3 pursuant to this Agreement must, in the opinion of the Department, be consistent with and substantially similar in concept and content to the ones identified in this Agreement or be otherwise acceptable to the Department. j. Support Document: The studies, inventory maps, surveys, data, inventories, listings or analyses used to develop and support the Plan Amendment or Remedial Plan Amendment. 2. Department Powers. The Department is the state land planning agency and has the power and duty to administer and enforce the Act and to determine whether the Plan Amendment is in compliance. 3. Negotiation of Agreement. The Department issued its Notice of Intent to find the Plan Amendment not in compliance. The above -styled proceeding commenced pursuant to Section 163,3184(10). Krause filed a Petition to intervene, which was granted. Subsequently, the parties conferred and agreed to resolve the issues in this Proceeding through this Agreement. It is the intent of this Agreement to resolve fully all issues between the parties in this Proceeding. 4. Dismissal. If the Local Government completes the Remedial Action required by this Agreement, the Department will issue a Notice of Intent addressing the Remedial Plan Amendment. The Department will file the Notice of Intent with DOAH. The Parties will also file a request to relinquish jurisdiction to the Department for dismissal of this proceeding or for realignment of the parties, as appropriate under Section 163.3184(16)(f), Florida Statutes. 5. Description of Provisions not in Compliance and Remedial Actions, Legal Effect of Agreement. Exhibit A to this Agreement is a copy of the Statement of Intent, which identifies the Plan Amendment as being not in compliance. Exhibit B sets out a Remedial Action needed for resolution of the issues herein and compliance. Exhibit C is a Future Land Use Map Amendment identifying the sub- area boundaries and area. Exhibit D is a Conservation Easement depicting the area to be protected from Id disturbance and development. Exhibits A, B, C, and D are incorporated in this Agreement by this reference. This Agreement constitutes a stipulation that if the Remedial Actions are accomplished, the Plan Amendment will be in compliance and the Local Government will record the Conservation Easement after entry of a Final Order by the Department. 6 Remedial Actions to be Considered for Adoption. The Local Government agrees to consider for adoption by formal action of its governing body all Remedial Actions described in Exhibits B, C, and D no later than the time period provided for in this Agreement. 7 Adoption or Approval of Remedial Plan Amendments. Within 60 days after execution of this Agreement by the parties, the Local Government shall consider for adoption all Remedial Actions or Plan Amendments and amendments to the Support Documents. This may be done at a single adoption hearing. Within 10 working days after adoption of the Remedial Plan Amendment, the Local Government shall transmit S copies of the amendment to the Department as provided in Rule 9J- 11.0131(3), Florida Administrative Code. The Local Government also shall submit one copy to the regional planning agency and to any other unit of local or state government that has filed a written request with the governing body for a copy of the Remedial Plan Amendment and a copy to Intervenors. The Remedial Plan Amendment shall be transmitted to the Department along with a letter which describes the remedial action adopted for each part of the plan amended, including references to specific portions and pages. 8. Acknow led went. All parties to this Agreement acknowledge that the "based upon" provisions in Section 163.3184(8), Florida Statutes, do not apply to the Remedial Plan Amendment. 9. Review of Remedial Plan Amendments and Notice of Intent. Within 30 days after receipt of the adopted Remedial Plan Amendments and Support Documents, the Department shall issue a Notice of Intent pursuant to Section 163.3184, Florida Statutes, for the adopted amendments in accordance with this Agreement. 9 a. In Compliance: If the adopted Remedial Actions satisfy this Agreement, the Department shall issue a Notice of Intent addressing the Remedial Plan Amendment as being in compliance. The Department shall file this notice with DOAH and shall move to have this proceeding dismissed. b. Not in Compliance: If the Remedial Actions do not satisfy this Agreement, the Department reserves the right to proceed to hearing in this matter. 10. Effect of Amendment. Adoption of any Remedial Plan Amendment shall not be counted toward the frequency restrictions imposed upon plan amendments pursuant to Section 163.3187(1), Florida Statutes. 11. PuEpose of this Agreement, Not Establishing Precedent. The Parties enter into this Agreement in a spirit of cooperation for the purpose of avoiding costly, lengthy and unnecessary litigation and in recognition of the desire for the speedy and reasonable resolution of disputes arising out of or related to the Plan Amendment. The acceptance of proposals for purposes of this Agreement is part of a negotiated agreement affecting many factual and legal issues and is not an endorsement of, and does not establish precedent for, the use of these proposals in any other circumstances or by any other local government. 12. Approval by Governing Body. This Agreement has been approved by the Board of County Commissioners of Monroe County governing body at a public hearing advertised at least 10 days prior to the hearing in a newspaper of general circulation in the manner prescribed for advertisements in Section 163.3184(15)(e), Florida Statutes. This Agreement has been executed by the appropriate officer as provided in Monroe County's charter or other regulations. 9 13. Changes in Law. Nothing in this Agreement shall be construed to relieve either party from adhering to the law, and in the event of a change in any statute or administrative regulation inconsistent with this agreement, the statute or regulation shall take precedence and shall be deemed incorporated in this Agreement by reference. 14. Other Persons Unaffected. Nothing in this Agreement shall be deemed to affect the rights of any person not a party to this Agreement. This Agreement is not intended to benefit any third party. 15. Attorney Fees and Costs. Each party shall bear its own costs, including attorney fees, incurred in connection with the above -captioned case and this Agreement. 16. Effective Date. This Agreement shall become effective immediately upon execution by the Intervenor, the Department and Monroe County. 17. Filing; and Continuance. This Agreement shall be filed with DOAH by the Department after execution by the parties. Upon the filing of this Agreement, the administrative proceeding in this matter shall be stayed by the Administrative Law .fudge in accordance with Section 163.3184(16)(b), Florida Statutes. 18. Retention of Right to Final Hearing. The parties hereby retain the right to have a final hearing in this proceeding in the event of a breach of this Agreement, and nothing in this Agreement shall be deemed a waiver of such right. Any party to this Agreement may move to have this matter set for hearing if it becomes apparent that any other party whose action is required by this Agreement is not proceeding in good faith to take that action. g 19. Construction of Agreement. All parties to this Agreement are deemed to have participated in its drafting. In the event of any ambiguity in the terms of this Agreement, the parties agree that such ambiguity shall be construed without regard to which of the parties drafted the provision in question. 7 20. Entire Agreement. This is the entire agreement between the parties and no verbal or written assurance or promise is effective or binding unless included in this document. 21. Governmental Discretion Unaffected. This Agreement is not intended to bind the Local Government in the exercise of governmental discretion which is exercisable in accordance with law only upon the giving of appropriate public notice and required public hearings. 22. Multiple Originals. This Agreement may be executed in any number of originals, all of which evidence one agreement, and only one of which need be produced for any purpose. 23. Captions. The captions inserted in this Agreement are for the purpose of convenience only and shall not be utilized to construe or interpret any provision of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their undersigned officials as duly authorized. DEPARTMENT OF COMMUNITY AFFAIRS 10 Charles Gauthier, AICP, Director Division of Community Planning Im 93 Approved as to form and legality: Assistant General Counsel Date By: Mayor Sylvia J. Murphy ATTEST: Danny L. Kolhage, Clerk K Deputy Clerk IN1.1 D11,11VO eV - A] Approved as to form and ality: t Assistant Monroe Co Attorney .y Date: Date on Approved as to form and legality: Intervenors' Attorney Date STATE OF • - . DEPARTMENT OF COMMUNITY AFFAIRS `Dedicated to making Florida a better place to call home" CHARL(E CREST Govemor July 24, 2009 The Honorable George Neugent, Mayor Monroe County Board of County Commissioners 25 Ships Way Big Pine Key, Florida 33043 Dear Mayor Neugent: The Department has completed its review of the Monroe County Comprehensive Plan amendments (DCA No. 09-1) adopted by Ordinances 017a-2009, 018-2009, 019-2009, 020- 2009, 021-2009 and 022-2009 on June 2, 2009. The Department has determined that Ordinances 017a-2009, 019-2009, 020-2009, 021-2009 and 022-2009 are "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes. The Department has determined that Ordinance 018- 2009 is "not in compliance" with the requirements of Chapter 163, Part H, Florida Statutes (F.S.), Chapter 380, Part 1, F. S., and Rule 9J-5, Florida Administrative Code (F.A.C.). The Department is issuing a Statement of Intent and Notice of intent to find a portion of the Amendment package "not in compliance." The Notice of Intent has been sent to the Key West Citizen for publication on July 27, 2009. The future land use map amendment adopted by Ordinance 018-2009 is not in compliance because the map amendment is not consistent with the goals, objections and policies within the elements of the comprehensive plan. The map amendment is inconsistent with the Smart Growth policies and the Tier System of the comprehensive plan which describe the finite capacity for new development without compromising the biodiversity of the natural environment as well as direct the preponderance of future development to Tier Ill designated areas. The enclosed Statement of Intent further describes the specific issues resulting in the "not in compliance" finding as well as recommended remedial actions. Please note that a copy of the adopted amendment and the Department's Statement of Intent and Notice of intent to find the amendment not in compliance must be available for public inspection Monday through Friday, except for legal holidays, during normal business hours, at the Monroe County, Planning Department, 2798 Overseas Highway, Marathon, Florida 33050. In addition, Section 163.3184 (8)(c)2, F.S., requires a local government that has an Internet site to post a copy of the Department's Notice of Intent on the site within 5 days after receipt of the mailed copy of the Notice of Intent. 2555 sHUMARD OAK BOULEVARD • TALLAHASSEE, r-L 32399-2100 850-488-8466 (p) • 850-921-0781 (f) • Web9ile, w w dca stgte t s COMMUNITY PLANNING 850.4W22L%(01 8W4W3309 (Q ► FLORIDA COMMUNITIES TRUST 950-922.2207Ip) OW-921.174710 � • HOUSING AND COMMUNITY OEM OVMENT &%0-48&79Se (DI 95"22.5623 (Q The Honorable George Neugent, Mayor July 24, 2009 Page 2 The Notice of Intent and the Statement of Intent must be forwarded to the Division of Administrative Hearings of the Department of Management Services for the scheduling of an administrative law judge pursuant to Section 120.57, F.S. We are interested in meeting with you and your staff at your convenience for the purpose of developing an acceptable solution to the not in compliance finding. If any affected person challenges the in compliance portion of the Notice of Intent, you will have the option of mediation pursuant to Section 163.3189(3)(a), F.S. If you choose to attempt to resolve this matter through mediation, you must file the request for mediation with the administrative law judge assigned by the Division of Administrative Hearings. The choice of mediation will not affect the right of any party to an administrative hearing. If you have any questions, or are interested in discussing a compliance agreement, please contact Rebecca Jetton, Area of Critical State Concern Administrator at 950-922-1766. Sincerely yours, Mike McDaniel, Chief Office of Comprehensive Planning MM/ams Enclosures: Notice of Intent Statement of Intent cc: Andrew Trivette, Growth Management Director Carolyn Dekle, Executive Director, South Florida Regional Planning Council STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS IN RE: MONROE COUNTY COMPREHENSIVE PLAN AMENDMENT 09-1; ORDINANCE NUMBER 018-2009 AMENDING THE FUTURE ocket No. 09-1-NOI-4401-(A)-(N) LAND USE MAP STATEMENT OF INTENT !Q FIND COMPREHEN 1VE PLAN AMENDMENTS NOT IN COMPLIANCE The Florida Department of Community Affairs, pursuant to Section 163.3184(10), Florida Statutes, and Rule 9J-11.012(6), Florida Administrative Code, hereby issues this Statement of Intent regarding the Comprehensive Plan amendment adopted by Monroe County Ordinance Number 018-2009 on June 2, 2009, not "in compliance." The Department finds the Comprehensive Plan amendment not "in compliance," based upon the Objections, Recommendations and Comments Report (ORC Report) issued by the Department on April 7, 2009, which is hereby incorporated by reference. The Department finds that the Comprehensive Plan amendment is not "in compliance" as defined in Section 163.3184(lXb), Florida Statutes, because the amendment is not consistent with Chapter 163, Part 11, Florida Statutes, the State Comprehensive Plan, Rule 9J-5, Florida Administrative Code, and Chapter 380, Part I, Florida Statutes for the following reasons: I. FUTURE LAND USE MAP (FLUM) CHANGES A. Inconsistent provisions. The amendment does not meet the requirements of Rule 9J- 5.005(5)(b), F.A.C., which requires that each map depicting future conditions reflect the goals, objections and policies within all elements of the comprehensive plan. The amendment is internally inconsistent with the adopted Comprehensive Plan and inconsistent with Chapter 163, Part II, F.S., Rule 9J-5, F.A.C., and Chapter 380, Part I, F.S., for the reasons noted: EM l . The significant environment of the Florida Keys prompted its designation by the Florida Legislature as an Area of Critical State Concern in December, 1975, The Florida Keys are the location of North America's only coral reef and home to over 30 species of threatened and endangered species of flora and fauna. Monroe County's Goals, Objectives and Policies of the Comprehensive Plan have multiple adopted strategies to protect significant resources and regulate growth, such as the Future Land Use Map designations, tier overlay designations and a competitive point system for residential and non-residential growth. Ordinance 018-2009 amended the Future Land Use designation for two adjacent parcels under common ownership [western portion (8.46 acres) of the larger parcel and the entire smaller parcel (3.0I acres)] from Residential Low (RL) to Mixed -Use Commercial (MC). Both parcels are designated Tier I and are surrounded by Tier I designated lands. These neighboring and adjacent Tier I designated lands include tropical hardwood hammock, freshwater wetlands, saltmarsh and buttonwood vegetation and habitat for the endangered Key Mud Turtle (Kinosternon baurti) and Key Deer (Odocoileus virginianus clavium). Monroe County Comprehensive Plan Policy 105.2.1 defines Tier I as an area "characterized as environmentally sensitive by the policies of this Plan and applicable habitat conservation plan, is to be designated as a Natural Area. New development on vacant land is to be severely restricted and privately owned vacant lands are to be acquired or development rights retired for resource conservation and passive recreation purposes." Monroe County Comprehensive Plan Goal 105 and Policies 105.1.5 and 105.1.6 implement smart growth i policies and recognize the finite capacity for new development without compromising the biodiversity of the natural environment and the continued ability of the natural and manmade systems to sustain livable communities as well as direct the preponderance of future development to areas designated as an overlay on the zoning map(s) as Infill (Tier 111). A Ordinance 018-2009 (Future Land Use Map amendment) allows additional development potential in a location of important vegetative communities that are the known locations of listed federal, state, or local species of concern. One of the criteria for designating land as Tier 1 is the known locations of threatened and endangered species. Increasing the residential density and commercial intensity of this parcel designated Tier I and surrounded by Tier I designated lands is internally inconsistent with Monroe County Comprehensive Plan Goal 105 and Policies 105.1.5 and 105.1.6. Further, the Future Land Use Map amendment is inconsistent with Section 163.3177(2), F.S., and Rule 9J.5-005(5), F.A.C., which requires that the Comprehensive Plan be implemented in a consistent manner and each map depicting future conditions reflect the goals, objections and policies within all elements of the comprehensive plan. Ordinance 018-2009 is inconsistent with Section 380.0552(7), Florida Statutes, Principles for Guiding Development (a): to strengthen local government capabilities for managing land use and development so that Iocal government is able to achieve these objectives without the continuation of the area of critical state concern designation; (b): to protect shoreline and marine resources, including mangroves, coral reef formations, sea grass beds, wetlands, fish and wildlife, and their habitat; and (c) to protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. Ordinance 019-2009 is inconsistent with Section 380.0552(7), Florida Statutes, Principles for Guiding Development because it is directing growth to an area within known, probable, or potential threatened or endangered species habitat and may increase secondary impacts to the habitat value and environmental sensitivity. Further, Ordinance 018-2009 is inconsistent with Rule 9J-5.012(3)(c)l, F.A.C., to limit the specific and cumulative impacts of development or redevelopment on wetlands, water quality, wildlife habitat, living marine resources, and beach and dune systems. The request for increased intensity and density adjacent to land containing threatened 3 and endangered species is inconsistent with Rule 9J-5.006(3)(c)2, F.A.C., which requires provision for compatibility for adjacent lands and Rule 9J-5.006(3)(b)4, F.A.C., to ensure the protection of natural resources. 2. The Department specifically finds the Comprehensive Plan amendment is inconsistent with the following rule and statutory provisions: Sections 163.3177(I), (2), (6)(a), (d), (8), (9) and (IOxa); and Sections 163.3178(2)(b), Florida Statutes; Rules 9J-5.005(2), (5)(a) and (b); 9J-5.006(2)(b), (3)(c)2, (3)(b)4, (3)(c)6, 9J-5.012 (2)(b), (3)(b)1, (3)(c)1 and 2; 9J-5.013(1) and 9J-5.013(2)(b)3 and 4, (2)(c)3, 5, 6 and (3); Florida Administrative Code. B. R—ecammended remedial actions. The above inconsistencies may be remedied by taking the following action: The Department recommends the County either rescind the Future Land Use Map amendment associated with Ordinance Number 018-2009 or adopt a site specific policy to define and restrict the amount of development potential and types of development allowed for these parcels. A site specific policy can recognize and legitimize the current non -conforming uses that exist on the parcels as well as prevent impacts to threatened and endangered species and their habitat. 1I. CONSISTENCY WITH THE STATE_COMPREHENSNE PLAN A- Incon is ent Provisions. The amendment is inconsistent with the State Comprehensive Plan goals and policies set forth in Section 187.201, Florida Statutes, including the following provisions: Goal (8)(a) Coastal and Marine Resources, Policies (b) 4, 5 and 6: Protect coastal resources, marine resources, and dune systems from the adverse effects of development. Develop and implement a comprehensive system of coordinated planning„ management, and land acquisition to ensure the integrity and continued attractive image of coastal 4 areas. Encourage land and water uses which are compatible with the protection of sensitive coastal resources. Goal (4)(a) Natural Systems and Recreational Lands, Policies (b) 1, 3, 4, 7 and 10: Conserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values. Prohibit the destruction of endangered species and protect their habitats. Establish an integrated regulatory program to assure the survival of endangered and threatened species within the state. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value. Emphasize the acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation. Goal (15)(a) Land Use, Policy (b) 1 and 2: Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. Goal (25)(a) Plan Implementation, Policies (b) 7: Ensure the development of strategic regional policy plans and local plans that implement and accurately reflect state goals and policies and that address problems, issues, and conditions that are of particular concern in a region. B. Recommended emedial action. These inconsistencies may be remedied by revising the Comprehensive Plan amendment as described above in Section I. III. CONSISTENCY WITH THE PRINCIPLES FOR GUIDING DEVE OPMENT A. Inconsistent provisions. The amendment is inconsistent with the Principles for Guiding Development, Section 380.0552(7), Florida Statutes. Principle (a) To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. Principle (b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. Principle (c) To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. B. Recommended remedial action. These inconsistencies may be remedied by revising the Comprehensive Plan amendment as described above in Section I. CONCLUSIONS 1. The Amendment is not consistent with the State Comprehensive Plan; 2. The Amendment is not consistent with Chapter 380, Part I, Florida Statutes; 3. The Amendment is not consistent with Chapter 9J-5, Florida Administrative Code; 4. The Amendment is not consistent with the requirements of Chapter 163, Part 11, Florida Statutes; 5. The Amendment is not "in compliance," as defined in Section 163.3184(1)(b) Florida Statutes; and 6. In order to bring the Comprehensive Plan amendments into compliance, the County may complete the recommended remedial actions described above or adopt other remedial actions that eliminate the inconsistencies. V- aC Executed this Z3 day of July 2009, in Tallahassee, Florida. C Mike McDaniel, Chief Office of Comprehensive Planning Division of Community Planning Department of Community Affairs 2555 Shurnard Oak Boulevard Tallahassee, Florida 32399 0 STATE OF FLORIDA DEPARTMENT OF COMMUMTY AFFAIRS NOTICE OF INTENT TO FWD THE MONROE COUNTY COMPREHENSNE PLAN ANtENDMENT ADOPTED BY ORDINANCE NO. 018-2008, NOT IN COMPLIANCE, AND THE COMPREIiE-NS1VE PLAN AMOMMENTS ADOPTED BY ORDINANCE NOS. 019-2008, 017o-2009, 020.2009 through 022-2009, IN COb9LJANCE DOCKET NO. 09- I-NO14401 -(A)-M The Department gives notice of its intent to find the Amendment to the Comprehensive Plan for Monroe County, adopted by Ordinance No. 018-2008 , on June 2, 2M, NOT IN COMPLIANCE, and Amendmems200% IN a by Ordinance Nos. 019-2008, 017a.2009, 020-2009 through 022-2009, on June 2, CE, pursuant to Sections 163.3194, 163.3197 and 163.3189, 390.05. 390.0552, F.S. The adopted Mourne Couny, Coo*ra�hwouvo Plan Ammimons, slur 1Dcpatwun `s objectiam, R ewmmeadations, and Comments Report (if mY� And the Depwaneds Statement of hums to find the Couaprebumve Pfau Amoodmatt Not In Compliance will be availabk for PAAW mspeetion Mo'dty through Frey, except for legal mlideys, during name! business howl, at the Monroe Canary. Omwih, Mann goment Divis m 2798 Overseas Highway, Suite 400, Moldwo, Florida 33050. Any drected person, as defined in Section 163.3184, F.S., has a right to petition for an admin. istrative hearing to challenge the proposed agency dqumioation that the Arts to the Monroe Canty eve Pim one In Compliamc, as defined is Subsoetim 163.3184(I), F.S. The petitim must ba filed witbia twenty -arc (21) days after publication of this notice, a copy must be matted or delivered to the local government and must include sll of the information and eomeats dcaaibed in Uniform Rule 28- 106.201, F.A.C. The petition most be filed with the Agency Clerk, Department of Community Affauv, 2555 Shumard Oak Boulevard, Tallahassee, Florida 32399-2100. Faihee to timely file a petition sbail Mute a waiver Of aty right to request as sdminis =dve pr0000ding as a Paddonor under Secti and tesons 120.569 and 120.57, F.S. If a petition is filed, the purpo w of the administrative hear will be tPresent ice evidence atimony and forward a neoommeoded order to the Delmua tt. If no Notof hams shall beoome.6nal agency akaioo �4Aa is mod, this This Nei of Intent and the Statement of Intent for the amendment found Not In Compliance will be forwarded by petition to the Division of Adminiasnuive Hearings (DOAH) of the of Maaa8cmeat Service$ far the whadtrlmg of an A vc Hewing pram to Sedicas 12�0.569 and 120.57, F.S. The purpose of the administrative herring will be to present evidence and testimony on the noncompliance issues alleged by the Department m its Obyxboas, Repononend guns, and Commons Report and Statement of latest is order to wCon a recommended order for forwarding to the Administration Commission. AfieCed Pis may petition to WWrv= is either proceeding referenced above. A petition for innervation must be filed et least twenty (20) days before the final hearing and trust ioi 3 ail of the in- formation and contents described in Uniform Rule 28-1 %.2o5, FA. C. Punn" to Section 163.3184(101 F.S., en new issues may be alleged as a reason to find a plan amendment not in complisaco in a petition to wu veoe feted more than twenty one (21) days after publication of this notice Unless the petitiowx establlahes good cause for not alleging such raw issues within the twenty ono (20 day tone paiad. The petition for intervention shall be filed at DOAK 1230 Apalachao Parkway, Tallahassee, Florida 32399-3060, and a copy mailed or delivered to the local govtanmeut and the Department. F"= to potitien to inz vew within the allowed time Game constitutes a waiver of any ngU such a Peron ben to request a hearing pwuma to Sections 120.569 and t20.57, F.S., or to participate in the administrative hearing. After an eve hQ nng Pun= is timely tiled, mediation is available pursuant to Subsoc uon 163.3189(3xa), F.S., to any d3'eeted person who is made a party to the proceeding by filing that taquest wuh the administrative law judge assigned by the Division of AdmkWxative Hearings. The choice of mediation shah! not affect a PwWs right to an adminw n d" hearing )17L�LCZW7 Office of Comprehensive Planning Division of Communuy Planning Department of Community Affairs 2555 Shumatd Oak Boulevard Tallahassee, Florida 32399-2100 Petitioner, VS. MONROE COUNTY, Respondent, and Interveners. Exhibit B STATE OF FLORIDA DOAH Case No. 09-4153GM EXHIBIT "B" TO STIPULATED SETTLEMENT AGREEMENT GOAL 107 Monroe County shall regulate land use and development activities of scarified and/or filled portions of parcels containing environmentally sensitive areas, by the enactment of area - specific regulations that allow development to occur subject to limitations and conditions designed to protect natural resources. Objective 107.1 Monroe County shall coordinate Land Use with the Elements of the Comprehensive Plan through Future Land Use Element Sub -Area Policies Applicable to a Specific Geographic Area. These sub -area policies identify parcels of land that require narrowly -tailored regulation in order to confine development potential to an area or extent less than the maximum development potential allowed by the future land use category. The development parameters established for each sub -area shall be based either on an inventory of uses and facilities established on the parcel or by data and analysis supporting the specific sub -area limitations. Policy 107.1.2 Specific Limitations on the Ramrod Key Mixed Use Area 1 Only the land uses listed in paragraphs 1-4 below shall be allowed on the parcels designated Ramrod Key Mixed Use Area 1 on Exhibit B-2 diagram, on which a concentration of non-residential uses exists, including approximately 15,325 square feet of commercial floor area devoted to the uses listed below. Exhibit B 1. Storage, warehousing, and processing of equipment and materials utilized or generated in construction, demolition and land clearing, together with ancillary activities, including, but not limited to: a. Administrative offices. b. Workshops and equipment maintenance areas, outdoors and within structures. C. Garages and outdoor parking for construction and demolition equipment and machinery. d. Outdoor and covered storage and processing of demolition debris and construction materials. e. Storage buildings. F Above -ground fuel tanks. 2. An antenna supporting structure with accessory building. 3. Residential uses consistent with the former RL future land use map designation and with the SS land use district. Single family residences shall be limited to the existing residence (including any replacement thereof) and no more than four (4) additional single family residences. 4. Outdoor storage, refinishing, repair and/or rebuilding of vehicles, boats and trailers that do not constitute a heavy industrial use. Development of the Ramrod Key Mixed Use Area 1 shall be subject to the restrictions set out below: 1. Wetlands and hammock areas adjacent to outdoor storage shall be protected by: a. Recordation of a conservation easement prohibiting all development activities on the approximately 8.87 acres of wetlands comprising the Easterly portion of parcel 00114150-000000. The area to be conserved is delineated on Exhibits B-1 and B-2. b. Construction and maintenance of a berm, no less than 3 feet in height, on scarified land along the Westerly edge of the wetlands portion of parcel 00114150-000000 as depicted on the attached aerial Exhibit B-1 and map Exhibit B-2 to protect the wetlands from stormwater runoff. Prior to issuing any permit for berm construction, Monroe County shall require submission of a stormwater management plan adequate to protect the wetlands portion of the parcel from degradation attributable to stormwater runoff from the adjacent scarified portion utilized for outdoor storage, construction, and demolition activities. 2. Development shall be contingent on any required coordination and/or approval from the United States Fish & Wildlife Service. O ZO 'V a Q --- ov o� z �v g W ui .++► LU Q W T Tm J W LU LLJ < CO W F- ❑ o Xui r v R 40 F- } � CO � 8 LL a a ❑ K o Y LLI Q N N v H W m 2 W m m P N co + 2 W W Q T LLLLLL111 a1 n O � m ro � O� Z n O B n �4ra(gt 9J IIIWIIIIII 0t .Cs� Return to: i ORM Coauty Growth Management Division 2798 Overseas Highway MMmVhon, Florida 33050 Prepared by; Joseph Albury, Esquire 309 Whitehead St. Key West Florida 33040 --------------- -•----------- --- Space Above This Lime For Recording This Conservation Easement is Granted this 2� day of 2010 by ,Rudolph O. Krause and Roseann Krause, Trustees U/T/D 7/19/88, whoa dress is 26351 OLD STATE ROAD 4-A RAMROD KEY, FL 3304, in the County of Monroe and the State of Florida {Grantor}, to Monroe County, a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, Florida 33040, (Grantee)_ Grantor declares and grants as follows: L Background Information A. Grantor is the fee simple titleholder of certain real property (the "servient estate"} located within the Easterly portion of the parcel described in Exhibit A hereto. B. Grantor certifies to Grantee that no mortgage exists on the servient estate. C. Grantor desires to prevent all development activities on the servient estate. D. The servient estate comprises approximately 8.87 acres of wetlands. E. Grantee is a general purpose political subdivision of the State and is authorized to regulate and control the use of real property through Land Development Regulations (LDRs) in order to protect the public health, safety and welfare of its citizens. Page 1 of 6 00CEA—Rev: VVW 2. Grant of Easement Grantor grants to Grantee a conservation easement over and upon the contiguous wetlands area (the "servient estate") located on the Easterly portion of the real property described in Exhibit A hereto, which area is more specifically delineated on the diagram attached as Exhibit B hereto. 3. Character of the Easement This easement is a conservation easement, which, as defined by Section 704.06 of the Florida Statutes, is a right or interest in real property which is appropriate to retaining land or water areas predominantly in their natural, scenic, open, agricultural or wooded condition; retaining such areas as suitable habitat for fish, plants or wildlife; retaining the structural integrity or physical appearance of sites or properties of historical, architectural, archeological or cultural significance; or maintaining existing land uses. 4. Location and Description of the Easement A. This easement is located on the servient estate described in Paragraph 2 above. B. The location of the property subject to this easement is shown in the diagram attached to this instrument as Exhibit B hereto and by reference made a part hereof. 5. Law Governing the Easement and Enforcement Thereof This easement is governed by Section 704.06 of the Florida Statutes, or the equivalent Florida Statute governing conservation easements, and is to be construed and enforced in accordance with that statute and in accordance with the laws of the State of Florida and the Grantee's LDRs. 6. Restrictions Imposed by the Easement By these presents Grantor imposes and will impose the following restrictions on the use of the servient estate within the easement area: A. No construction or placing of buildings, roads, signs, billboards or other advertising, utilities or other structures on or above the ground. B. No dumping or placing of soil or other substance or material as landfill or dumping or placing of trash, waste or unsightly or offensive materials. Page 2 of 7 GOCEA — Rear. 8/10 Prgm-d by: C. No removal, trimming or pruning of trees, shrubs or vegetation except for such removal, trimming or pruning which Grantee's biologist has authorized in writing. D. No excavation, dredging or removal of loam, peat gravel, soil, rock or other material substances in such a manner as to affect the surface of the easement area. E. No surface use except for purposes that permit the land or water area to remain predominantly in its, natural condition. F, No activities detrimental to drainage, flood control, water conservation, erosion control or soil conservation or Fish and wildlife habitat preservation. G. No acts or uses detrimental to such retention of land or water areas. R No planting of non-native, invasive or exotic plants. 1. No acts or uses detrimental to the preservation of the structural integrity or physical appearance of sites or properties of historical, architectural, archeological or cultural significance 7. Access to the Servient Estate Grantor will allow Grantee to access and to enter upon the servient estate, with no less than 24 hours notice, for the purposes of inspection to determine the Grantor's compliance with this Grant of Easement. 8. Limitation on Liability for Personal Injury or Injury to Property The Grantor waives any rights the Grantor may have to bring a claim against Grantee for personal injury or injury to property that is caused by the negligent action or inaction of Grantee or an employee or agent of Grantee during the course of Grantee's activity related to this Grant of Easement and further Grantor holds Grantee harmless from the claims of all persons for action, inactions or activities occurring on the servient estate. 9. Term of Easement This easement is perpetual and runs with the land. 10. Persons Bound by Easement This easement is binding on all present and future owners and mortgagees of the servient estate. Page 3 of 7 GOCEA — Rev: 8/1/06 Prepared by: 11. Entirety of Grant of Easement This Grant of Easement constitutes the entire Grant of Easement from Grantor to Grantee and any understanding or representation of any kind preceding the date of this Grant of Easement is not binding on either the Grantor or Grantee except to the extent it has been incorporated into this Grant of Easement. 12. Modification of Grant of Easement This Grant of Easement may be modified only by a written modification signed by an authorized representative of Grantor and Grantee and by any mortgagees). 13. Recovery of Attorney's Fees In the event of any controversy, claim or dispute arising under or as a result of this Grant of Easement, the prevailing party will be entitled to recover reasonable attorney's fees and costs. 14. Notice Concerning Grant of Easement Any notice provided for or concerning this Grant of Easement will be made in writing and will be sufficiently given when sent by certified or registered mail to the respective address, as set forth at the beginning of this Grant of Easement, of Grantor or Grantee. 15. Recording of Grant of Easement This Grant of Easement will be recorded in the Official Records of Monroe County, Florida and any changes hereto will also be recorded in the Official Records of Monroe County. 1n Witness Whereof, Grantor grants the Conservation Easement above and executes this instrument this S ` day of -%1', 2010. 7 First Witness Si Lure kudoiph ' Krause, Trustee First Witness Prin ed Name Ro eann Krause, Trustee /X- ,&5cond Witness Signature Page 4 of 7 GOCHA—Rev, 8!1106 Prepared by: Second Witness Printed Name State of Florida County of Monroe Before me, the undersigned authority, personally appeared Rudolph Krause, who ersonall blown to me, or have produced and _ . respectively as identification. Sworn and subscribed to me this Typed Notary Name and Number O. Krause and Roseann day of -}- , 2010. XOTMY PIratrc-STAT? -M MWA �,.'".. Cheryl Rackley �COMMISMm#DD848443 Expires: FEB. 17, 2413 $oxnso oergexrxcsamuracu.M In Witness Whereof, Grantee accepts the Conservation Easement granted above and executes this instrument the date set forth below. First Witness Signature First Witness Printed Name Second Witness Signature Second Witness Printed Name Monroe County, Florida Director of Growth Management (Signature) Director of Growth Management (Printed Name) Date Page 5 of 7 GOCEA — Rev: 8/1/06 Prepwad by- State of Florida County of Monroe Before me, the undersigned authority, personally appeared who is personally known to me, or has produced _ identification. Sworn and subscribed to me this day of 2010. Typed Notary Name and Number Notary Signature and Seal EXHIBIT A To Conservation Easement Part of Government Lot 1, Section 31, Township 66 South, Range 29 East, Monroe County, Florida, more particularly described as: M Beginning at the N.W. corner of the NE'/< of the NE K of said Section 31, thence running South 540 feet on the East line of Government Lot 1 of Section 31 to the North line of the Florida East Coast Railway right of way; thence Westerly along the North line of the Florida East Coast right of way to the shore line of Niles Channel; thence Northerly along the shoreline of Niles Channel to the NW corner of government Lot 1; thence Easterly 2178 feet along the North line of Government Lot 1, to the point of beginning. LESS the parcel of land described at Monroe County, Florida OR Book 1762 at page 843. ALSO LESS that portion of the above -described property lying Southerly of Old State Road 4-A. Page 6 of 7 GOCFA — Raw 811106 Prepared by: wz in v s r Q Q W - ORDINANCE NO. 018 -20W AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS APPROVING THE REQUEST BY RUDOLPH & ROSEANN KRAUSE TRUSTEES TO AMEND THE FUTURE LAND USE (FLUM) DESIGNATION FROM RESIDENTIAL LOW (RL) TO MIXED USE / COMMERCIAL (MC) FOR PROPERTY LEGALLY DESCRIBED AS SECTION 31, TOWNSHIP 66 SOUTH, RANGE 29 EAST, RAMROD KEY, PT 1 MONROE COUNTY, FLORIDA, HAVING REAL ESTATE NUMBER AS 00114150.000400 AND A PORTION OF PROPERTY LEGALLY DESCRIBED AS SECTION 31, TOWNSHIP 66 SOUTH, RANGE 29 EAST, RAMROD KEY, PT I MONROE COUNTY, FLORIDA, HAVING REAL ESTATE NUMBER 00114150.000000; PROVIDING FOR SEVERABILITY AND REPEAL OF INCONSISTENT PROVISIONS; PROVIDING FOR TRANSMITTAL TO THE DEPARTMENT OF COMMUNITY AFFAIRS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, during a special scheduled public meeting held on January 26, 2009, the Monroe County Board of County Commissioners conducted a review and consideration of a request filed by Roseann & Rudolph Krause, to amend the subject property's Future Land Use Map (FLUM) designation from Residential Low (RL) to Mixed Use / Commercial (MC) in accordance with Policy 101.4.5 of the Monroe County Year 2010 Comprehensive Plan and §9.5- 511 of the Monroe County Code; and 'WHEREAS, the subject property is located at 26351 Old State Road 4A, Ramrod Key, approximate mile marker 26.5, and is legally described as 31 66 29 Ramrod Key, Pt Lot 1, Monroe County, Florida, having Real Estate Number 00091090.000000; and WHEREAS, based upon the information and documentation submitted, the Planning Commission makes the following Findings of Fact and Conclusions of Law: 1. The proposed FLUM amendment is for the western portion (8A6 acres) of real estate number 00115140.000000 and the entire parcel (3.01 acres) of real estate number 0114150-000400. 2. The proposed FLUM amendment is consistent with Monroe County Year 2010 Comprehensive Plan Goal 101 manages future growth to enhance the quality of life. The proposed FLUM amendment is consistent with Monroe County Year 2010 Comprehensive Plan Objective 101.4 which maintains the community characters and protects natural resources by regulating future development and redevelopment. Page 2 of 4 4. The proposed FLUM amendment is consistent with Monroe County Year 2010 Comprehensive Plan Policy 101.4.5 which establishes the Mixed Use / Commercial FLUM criteria. 5. The proposed FLUM amendment is consistent with Monroe County Year 2010 Comprehensive Plan Goal 105 which implements smart growth policies and recognizes the finite capacity for new development without compromising the natural environment and directs development into Tier 111 lands. 6. Staff has determined that the proposed FLUM amendment is consistent with the following provisions and intent of Sec. 9.5-511(dx5)b of the Monroe County Code, Land Development Regulations: (iii) Data errors, (iv) New issues and (v) Data updates. 7. Staff finds proposed FLUM amendment consistent with the Principles for Guiding Development as a whole and not inconsistent with any one principle. The proposed area is cleared, scarified and developed and will not significantly affect natural resources. 8. MCC Section 102-158 maintains the proposed FLUM amendment may not permit an adverse change in community character. Staff has determined the proposed future land use map designation to Mixed Use / Commercial (MC) will not adversely change community character. 9. Local roads are already in place and have been well maintained. 10. The 11.47 acres are scarified and developed. Effects on natural resources are not anticipated. 11. The proposed FLUM amendment will encourage commercial development to remain on disturbed lands rather than encroaching on environmentally sensitive area. 12. The 2008 U. S. 1 Arterial Travel Time and Delay Study for Monroe County indicates a LOS of "A" from East Shore Drive to Torch Ramrod Bridge (MM 25 to MM 27.5). 13. The FLUM amendment may affect solid waste. Monroe County has a haul out contract through September 20, 2016 which provides the capacity to remove any solid waste. 14. The 100 gallons per person per day of potable water is commonly accepted as appropriate and is reflected in Policy 701.1.1 of the Monroe County Year 2010 Comprehensive Plan. 15. MCC Section 1144 requires that all developments retain stormwater on site following Best Management Practices (BMP's). 16. The proposed FLUM amendment will not adversely affect Objective 102.3.1 and will encourage infill development to remain on already existing developed land. WHEREAS, the Planning & Environmental Resources Department Staff has found that all of the required standards are met and recommends approval of the application; and WHEREAS, the Monroe County Planning Commission held a public hearing in Marathon on November 4, 2008 and based on the facts presented at the meeting, the Planning Commission recommended approval of the request; PW 3 of NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1. The Board specifically adopts the findings of fact and conclusions of law stated above. Section 2. The previously described property, which is currently designated Residential Low (RL) shall be designated Mixed Use / Commercial (MC) as shown on the attached maps, which are hereby incorporated by reference and attached as Exhibits 1 and 2. Section3. The Future Land Use Map of the Monroe County Year 2010 Comprehensive Plan shall be amended as delineated in Section 2 above. Section 4. If any section, subsection, sentence, clause, item, change or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity. Section 5. All ordinances or parts of ordinance in conflict with this ordinance are hereby repealed to the extent of said conflict. Section 6. This ordinance shall be filed in the Office of the Secretary of State of the State of Florida and transmitted to the Florida Department of Community Affairs, but shall not become effective until a notice is issued by the DCA or Administration Commission approving the ordinance. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a special meeting held on the 2°d day of June A.D., 2009. Mayor George Neugent Yes C:1 C14 Mayor Pro Tern Sylvia Murphy Yes o ., co Commissioner Kim Wigington _YeR Uj v aF— Commissioner Heather Carruthers YPS C-1 Commissioner Mario Di Gennaro e8 Li LL-o ® gUp --= BOARD OF COUNTY COMMISSIONERS OF MONROE a. LsJ U COUNTY, FL ORI A � BY ` 0 5 Mayor George Neugent '(SEAL) FATTEST: DANNY L. KOLHAGE, CLERK DEPUTY CLERK Page 4 of 4 Exhibit• • • The Monroe County Future Land Use Map is amended as indicated above. Proposal: Future Land Use change of RE 00114150-000400 and a portion of N RE 00114150-000000 from Residential Low (RL) to Mixed Use/Commerical (MC) ■ � \\°-- d� \ \ \ F * 3:00 P.M. PUBLIC HEARING * BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: October 20, 2010 - KW Department: County Atto= Bulk Item: Yes No X Staff Contact : Suzanne Hutton 292-3470 AGENDA ITEM WORDING: A public hearing to consider approval of an ordinance requiring registration of people representing others, seeking to influence the BOCC, and to delete the exemption available to officials and employees in County service as of April 27, 1990, which exemption would allow them* to lobby the County immediately after vacating office while all other officials and employees are precluded from lobbying for 2 years after vacating position. (*Elected officials are currently prohibited by statute from lobbying for 2 years after leaving office.) ITEM BACKGROUND: On April 21, 2010, the BOCC enacted a lobbyist registry ordinance. There were issues as to administration and complaints from the public to being called "lobbyists", and the BOCC directed that the ordinance be re -drafted to address the issues. Since the ordinance has already been incorporated into the County Code and there are some terms that overlap with provisions related to lobbying by former officials and employees, rather than repeal Ordinance No. 11-2010 and start again from scratch, it is preferable to have an ordinance that reflects changes to the current Code which requires a public hearing. PREVIOUS RELEVANT BOCC ACTION: 9/15/10 BOCC approved public hearing for October 20, 2010 at 3:00 P.M. in Key West, FL; Enactment of Ordinance No. 011-2010, requiring registration of lobbyists; enactment of Ordinances No. 10-1990, No. 20-1990 and No. 22-2004, prohibiting current and former employees and officials from lobbying activities. CONTRACT/AGREEMENT CHANGES: Ordinance eliminates the definition of a lobbyist, creates a definition for representative, and changes the requirement for lobbyists to register with the County to a requirement for registration of people representing others, seeking to influence official action. It also eliminates an exemption applicable only to people employed as of 4/17/1990, or the revision date of July 10, 1990 — the exemption is from a prohibition against lobbying for two years after vacating position. STAFF RECOMMENDATIONS: Approval. TOTAL COST: N/A INDIRECT COST: BUDGETED: Yes No DIFFERENTIAL OF LOCAL PREFERENCE: N/A COST TO COUNTY: N/A SOURCE OF FUNDS: REVENUE PRODUCING: Yes _ No AMOUNT PER MONTH Year APPROVED BY: County Atty X OMB/Purchasing Risk Management DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM # Revised 7/09 * ADD ON * BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 10/20/10 - KW Bulk Item: Yes X No Division: County Attorney Staff Contact: Bob Shillinger, #3470 AGENDA ITEM WORDING: Approval of a resolution endorsing the candidacy of Edwin A. Scales, III for the vacant position on the Third District Court of Appeals. ITEM BACKGROUND: Monroe County is only one of two counties within the jurisdiction of the Third District Court of Appeals. Since its creation in 1957, no lawyer from Monroe County has ever been appointed to serve as a judge on the Third District Court of Appeals. Ed Scales has served the citizens of Monroe County for many years in a variety of capacities including City Commissioner City of Key West and a member of the Board of Trustees for FKCC, a member of the TDC, the Judicial Nominating Commission of the 16`h Judicial Circuit and the Southern District of Florida and as a member of the Board of Governors of the Florida Bar. Mr. Scales is an accomplished appellate lawyer who is well qualified to serve on the Third District. The Judicial Nominating Commission for the Third District Court of Appeals has nominated Mr. Scales to serve on the Third District Court of Appeals and the Governor has been presented with a total of three nominees from which to choose to fill this seat. PREVIOUS RELEVANT BOCC ACTION: N/A CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval. TOTAL COST: N/A INDIRECT COST: N/A BUDGETED: N/A DIFFERENTIAL OF LOCAL PREFERENCE: N/A COST TO COUNTY: N/A SOURCE OF FUNDS: N/A REVENUE PRODUCING: Yes ,/ No AMOUNT PER MONTH Year APPROVED BY: County Atty / fk OMB/Purchasing Risk Management DOCUMENTATION: Included x Not Required _ DISPOSITION: AGENDA ITEM # -61 J12- Revised 2/05 * ADD -ON * RESOLUTION NO. - 2010 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA ENDORSING THE CANDIDACY OF EDWIN SCALES FOR THE VACANT POSITION ON THE THIRD DISTRICT COURT OF APPEAL. WHEREAS, Monroe County is one of only two counties within the jurisdiction of the Third District Court of Appeal; and WHEREAS, since creation of the Third District Court of Appeal in 1957, no lawyer from Monroe County has ever been appointed to serve as judge on that panel; and WHEREAS, due to the unique characteristics of the Florida Keys and the concomitant unique legal issues, it is imperative that those who sit in judgment over Keys' cases have an informed appreciation for both the Keys and the ramifications of the decisions affecting them; and WHEREAS, Mr. Edwin Scales has submitted his application to fill a vacancy on the Third District Court of Appeal; and WHEREAS, Mr. Scales is an accomplished appellate lawyer and is well qualified to serve on the Third District Court of Appeal; and WHEREAS, the Judicial Nominating Commission for the Third District Court of Appeal has nominated Mr. Scales to serve on the Third District; and WHEREAS, Mr. Scales has served the citizens of Monroe County with distinction for many years in a variety of capacities including but not limited to serving as a City Commissioner and a Commissioner on the Planning Board for the City of Key West, a member of the Board of Trustees for the Florida Keys Community College, a member of the Monroe County Tourist Development Council, and a member of the Judicial Nominating Commissions of the 16t' Judicial Circuit and the Southern District of Florida; and WHEREAS, Mr. Scales also served the citizens of the entire State of Florida through his position as a member of the Board of Governors of the Florida Bar as well as counsel to the Florida Citrus Commission and other clients; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, THAT: The Governor is respectfully requested to appoint Edwin Scales to fill the current vacancy on the Third District Court of Appeal; and 9-23-10 aftemoon 2d ver Page lof 2 Pages 2. The Clerk is directed to immediately transmit this Resolution forthwith to the Governor. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular meeting of said Board on the 2& day of October, A.D., 2010. Mayor Sylvia Murphy Mayor Pro Tem Heather Carruthers Commissioner Mario Di Gennaro Commissioner George Neugent Commissioner Kim Wigington (SEAL) BOARD OF COUNTY COMMISSIONERS ATTEST: Danny L. Kolhage, CLERK OF MONROE COUNTY, FLORIDA By: By: Deputy Clerk Mayor Sylvia Murphy MONROE COUNTY ATTORNEY 77yFO M: OB R B. S ILLIN ER, JR. CHIEF ASS)STANVOU�NTY ATTORNEY Dates D 9-23-10 afternoon 2d ver Page 2of 2 Pages