Item P1* 3:00 p.m. Public Hearing
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 03/20/ 13 - MAR
Bulk Item: Yes No x
Division: Cgimiy Attorney
Staff Contact: Susan Orimsle #3477
AGENDA ITEM WORDING: A public hearing to consider an ordinance amending Monroe County
Code Chapter 2, Article III, Division 7, Sec. 2-202, Quasi -Judicial Proceedings, clarifying that Monroe
County, as allowed pursuant to F.S. 286.0115, is officially adopting by ordinance the statutory
requirements set forth in F.S. Sec. 286.0115(1)(c ) removing the presumption of prejudice in quasi—
judicial proceedings by disclosure of ex parte communications, as well as ensuring that the BDCC
Administrative Procedures are amended to reflect the Monroe County Code.
ITEM BACKGROUND: Monroe County, pursuant to Sec. 286.0115 Florida Statutes, regarding ex-
parte communication with local public officials in connection with non -land use quasi-judicial
proceedings, and land use quasi- judicial proceedings, passed and adopted Ordinance No. 035-2010 on
November 17, 2010. Because of the language used, Ordinance No. 035--2010 was not clear as to
whether it created a section in the Monroe County Code setting forth the procedures specified by Sec.
286.0115(1)(c ) Florida Statutes in regard to curing such communications by disclosure or whether it
was to be done later by resolution. The Agenda Item Summary from the November 17, 2010 meeting
shows that the requirements were intended to be adopted at the time the ordinance was heard. Since
other portions of the ordinance on the same topic (ex-parte discussions on land use matters, quasi-
judicial hearing procedures) were clearly adopted and codified, this section should be specifically
included as originally intended so there is no doubt as to the Board's intention. "If adopted by
county... ordinance or resolution, adherence to the following procedures shall remove the presumption
of prejudice arising from ex parte communications with local officials." The ordinance must be
adopted with the text as written in the statute. while the Administrative Procedures provide for
disclosure, the wording is not exactly the same as the statutory language. Adherence to these
procedures of disclosure will remove the presumption of prejudice that may arise from ex parte
communications with county officials. The ordinance provides that the BDCC Administrative Code,
which currently prohibits ex-parte communications, shall be amended to reflect these changes, and
those in Ordinance No. 035-2010.
PREVIOUS RELEVANT BOCC ACTION:
11/17/10 Ordinance No. 035-2010
2/20/ 13 BDCC approved public hearing for March 20, 2013 at 3 p.m. in Marathon, FL
CONTRACT/AGREEMENT CHANGES: NIA
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: NIA INDIRECT COST:
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY: NIA
BUDGETED: Yes No
SOURCE OF FUNDS: NIA
REVENUE PRODUCING: Yes x No AMOUNT PER MONTH Year
APPROVED BY: County Atty x OMB/Purchasing Risk Management
DOCUMENTATION: Included x
DISPOSITION:
Not Required
AGENDA ITEM # P-1
* Revised Agenda Back --up
[Now includes Memo to BCCC]
OUNTY oMONROE
KEY WEST FLORIDA 33040
(305)294-4641
Robert B. Shillinger, County Attorney**
Pedro I Mercado, Assistant County Attorney **
Susan M. Grimsley, Assistant County Attorney** ,.
Natileene W. Cassel, Assistant County Attorney**
Cynthia L. Hall, Assistant County Attorney ** 4!
Christine Limbert-Barrows, Assistant County Attorney **
Derek V . Howard, Assistant County Attorney
Lisa Granger, Assistant County Attorney
Steven T. Williams, Assistant County Attorney
** Board Certified in City, County & I.Jocal Goat. I_.aw
MEMORANDUM
To: Mayor and County Commissioners
Through: Robert B. Shillinger, County Attorney Ikap V
From: Susan Grimsley, Assistant County Attorney
Date: March 6, 20] 3
BOARMI-E COUNTY
Mayor George Neugent, District 2
Mayor Pro Tern, Heather Carruthers, District 3
Danny L. Kolhage, District 1
David Rice, District 4
Sylvia J. Murphy, District 5
Office of the County Attorney
1111 12'hStreet, Suite 408
Key West, FL 33040
(305) 292-3470 — Phone
(305) 292-3516 — Fax
Re: Proposed ordinance Clarifying Procedures for Ex Parte Communications
Amending Ordinance 035-2010 Monroe County Code Sec. 2-202
BOCC Public Hearing March 20, 2013
1. Proposed Ordinance Amendment (Ex Parte Communication in Non Land Use Matters):
Due process is required in quasi-judicial hearings by a governmental body. Generally, if a decision of a
quasi-judicial nature by a governmental board is challenged, there is a presumption of prejudice when an
affected person has contacted a local governmental official privately (ex pane communication). This
presumption of prejudice must be rebutted by the government in any challenge to the decision. Florida
Statute Sec. 286.0115 states that if local public officials follow the procedures as set forth in the statute,
the presumption of prejudice is actually removed, or neutralized. The County adopted Ordinance 035-
2010 according to the attached documentation in order to establish such a procedure.
The language was copied verbatim from the statute and included the wording "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." The "If adopted"
language needs to be removed because the intent was to actually ado t the Drocedure. The above
wordin2 in Monroe County Code Sec. 2-202 c is the only ortion of the ordinance being considered for
amendment.
This section of the statute and the code are intended to apply to non -land use quasi judicial hearings and
possible ex parte communications. Disclosure of ex parte communications must be made prior to the
item being heard. There are very few non -land use items of a quasi- judicial nature before the BOCC,
but they would include appeals from right of way permit decisions.
Sec. 2-202(c )(2) of the Monroe County Code provides a complete prohibition against ex parte
communications in collective bargaining impasse hearings.
2. Ex parte Communication in Land Use Matters:
In regard to land use matters, the Board passed the section of Ordinance 035-2010 dealing with quasi-
judicial land use matters and ex parte communications. As prescribed by the statute, it was adopted
verbatim and disclosure is not required if the parties talk to a commissioner privately. The decision of
the board must be made based on and supported by substantial competent evidence. Because the
ordinance was adopted pursuant to the statute, the presumption of prejudice is removed entirely for land
use matters. Land use matters heard by the Board are land use district (zoning) map amendments,
administrative relief, beneficial use determinations, and appeals from ROOO rankings, among others.
There is nothing prohibiting such disclosure; however it is not required.
Flood plain management appeals and variances would probably be considered "land use matters", but
erring on the side of disclosure if there is such a communication would be the best course of action.
I BOCC Administrative Procedures:
The BOCC Administrative Procedures state that there shall not be any communication with a party to a
quasi-- judicial procedure, but if there is one, it should be disclosed. Florida Statute Sec. 286.0115 states
that the presumption may be removed if an ordinance or resolution is passed requiring such disclosure.
However, the BOCC Administrative Procedures were not changed. This ordinance directs the County
Attorney's staff to amend the procedures and present them for board approval.
4. Takings Liability:
This ordinance does not directly affect takings liability or Bert Harris Act claims.
ORDINANCE NO. — 2013
AN ORDINANCE AMENDING MONROE COUNTY CODE CHAPTER 2,
ARTICLE III, DIVISION 7, SEC. 2-202; CLARIFYING THE ADOPTION OF
PROCEDURES FOR EX-PARTE COMMUNICATIONS AS ALLOWED IN
F.S. 286,0115; DIRECTING THAT THE BOCC ADMINISTRATIVE
PROCEDURES BE AMENDED TO CONFORM THEREWITH;
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 256,
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
. q J
taken by a county commission, the legislature enacted Florida Statute Sec. 286.0115; and
WHEREAS, Florida Statute Sec. 286.0115 sets forth certain requirements regarding the
access to local public officials in connection with subsequent quasi -Judicial , proceedin sparticularly
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such hearings on local government land use matters; and
WHEREAS, on November 17, 2010, the Board of County Commissioners passed and adopted
Ordinance No. 035-2010 (Ordinance) providing for quasi-judicial proceedings and related ex- arte
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communications and according to the agenda item summary intending to adopt the required language
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in Florida Statute Sec. 286.0115; and
WHEREAS, the purpose of the Ordinance as stated in the agenda item was to adopt
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procedures which "will remove the presumption of prejudice that may arise from ex arte
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communications with county officials, and
WHEREAS, the Ordinance contained language calling into doubt whether certain procedures
under the statute were actually adopted; and
WHEREAS, with this amendment, the adherence to the prescribed procedures shall make
clear that the county intended to remove the presumption of prejudice arising from ex parte
communications with county officials by following the disclosure procedures in Florida Statute Sec.
286.0115(1); and
WHEREAS, Florida Statute Sec. 286.0115 allows, but does not require, a coup to adopt b
• q � county p y
ordinance or resolution the statutory requirements in order for those re requirements to apply; and
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WHEREAS, the statutory language must be adopted to comply e with the requirements
p
removing the presumption of prejudice for ex--parte corm muni cations inquasi- judicial proceedings;
Quasi -Judicial Proceedings and Ex Parte Communications
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 Section 2-202(c)(1) is hereby
amended to read:
Section 2-202. Quasi -Judicial Proceedings
(c) Ex Parte Communications.
(1) Generally Allowed.
Any person not otherwise prohibited by statute, charter provision, or ordinance may discuss with an
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. '
nvcl in Ej ]a
A, erence 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 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.
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.
SECTION 2, INCLUSION IN THE BOCC ADMINISTRATIVE PROCEDURES. Procedures
for ex-parte communications enumerated herein and in Ordinance 035-2010 shall be followed by the
Board. The County Attorney is directed to amend the BOCC Administrative Procedures to
Quasi -Judicial Proceedings and Ex Parte Communications Z
incorporate the provisions contained herein and in Ordinance 03 5-2010 regarding ex parte
communications..
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 Section 1 of
this Ordinance shall be included and incorporated in the Code of Ordinances of the Coup of Monroe
County
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,, Florid at a
regular meeting of said Board held on the day of 92013.
Mayor George Neugent
Mayor Pro Tern Heather Carruthers
Commissioner Sylvia Murphy
Commissioner David Rice
Commissioner Danny L. Kolhage
(SEAL)
Attest: AMY HEAVILIN, Clerk
as
Deputy Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
Mayor George Neugent
0.4ROry COUNTY ATTORNEY
PPR D AS TO FORM
SUSAN M. GRIMSLEY
ASSISTA T CCUNTY ATTfl Jy
Quasi -Judicial Proceedings and Ex Parte Communications
Statutes & Constitution :View Statutes : Online Sunshine
Pagel of 2
Select Year: 2012 90
The 2012 Florida Statutes
Title XIX Chapter 286 View Entire Cha ter
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 uasi-
]udicial 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 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
http://www.leg.state.fl.us/Statutes/index.cfm?App mode --Display Statute&Search String=&URL=0200- 1 /79/9nt I
Statutes & Constitution :View Statutes: Online Sunshine
Page 2 of 2
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 pane 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 CD 1995-2013 The Florida Legislature • Privacy Statement • contact Us
http://www.leg.state.fl.us/Statutes/index.cfm?App mode --Display Statute&Search Strine=&iTRT; n?nn_ 1ogonri
NOTICE OF INTENTION TO CONSIDER
ADOPTION OF COUNTY ORDINANCE
NOTICE IS HEREBY GIVEN TO WHOM IT MAY CONCERN that on March 20, 2013 at 3:00
P.M., or as soon thereafter as may be heard, at the Marathon Government Center, 2798 Overseas
Highway, Mile Marker 50, Marathon, Monroe County, Florida, the Board of County
Commissioners of Monroe County, Florida, intends to consider the adoption of the following County
ordinance:
AN ORDINANCE AMENDING MONROE COUNTY CODE CHAPTER 2,
ARTICLE III, DIVISION 7, SEC. 2-202; CLARIFYING THE ADOPTION OF
PROCEDURES FOR EX-PARTE COMMUNICATIONS AS ALLOWED IN F.S.
286.0115; AMENDING THE BOCC ADMINISTRATIVE PROCEDURES TO
CONFORM THEREWITH; PROVIDING FOR THE REPEAL OF ALL
ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR
INCORPORATION INTO THE MONROE COUNTY CODE OF ORDINANCES;
AND PROVIDING AN EFFECTIVE DATE.
Pursuant to Section 286.0105, Florida Statutes, notice is given that if a person decides to appeal any
decision made by the Board with respect to any matter considered at such hearings or meetings, he will
need a record of the proceedings, and that, for such purpose, he may need to ensure that a verbatim
record of the proceedings is made, which record includes the testimony and evidence upon which the
appeal is to be based.
ADA ASSISTANCE: If you are a person with a disability who needs special accommodations in order to
participate in this proceeding, please contact the County Administrator's Office, by phoning (305) 292-4441,
between the hours of 8:30 a.m. - 5: 00 p.m., no later thanfive (5) calendar days prior to the scheduled meeting;
if you are hearing or voice impaired, call "711'
Dated at Key West, Florida, this 201h day of February, 2013.
AMY HEAVILIN, Clerk of the Circuit Court
(SEAL) and ex officio Clerk of the Board of County
Commissioners of Monroe County, Florida
Publication dates:
KW Citizen (Su) 2/24/13
Keynoter (Wed) 2/27/13
Reporter (Fr) 3/1/13
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:
02/20/13 - KL
Division: County Attorney
Bulk Item: Yes X No Staff Contact: Susan Crimsley, #3477
AGENDA ITEM WORDING:
Approval to advertise a public hearing to consider an ordinance amending Monroe County Code Chapter 2,
Article III, Division 7, Sec. 2-202, Quasi -Judicial Proceedings, clarifying that Monroe County, as allowed
pursuant to F.S. 286.0115, is officially adopting by ordinance the statutory requirements set forth in F.S. Sec.
286.0115(1)(c ) removing the presumption of prejudice in quasi —judicial proceedings by disclosure of ex parte
communications, as well as ensuring that the BOCC Administrative Procedures are amended to reflect the
Monroe County Code.
ITEM BACKGROUND:
Monroe County, pursuant to Sec. 286.0115 Florida Statutes, regarding ex-parte communication with local public
officials in connection with non -land use quasi-judicial proceedings, and land use quasi- judicial proceedings,
passed and adopted ordinance No. 035-2010 on November 17, 2010. Because of the language used, ordinance
No.035-2010 was not clear as to whether it created a section in the Monroe County Code setting forth the
procedures specified by Sec. 286.0115(1)(c ) Florida Statutes in regard to curing such communications by
disclosure or whether it was to be done later by resolution. The Agenda Item Summary from the November 17,
2010, meeting shows that the requirements were intended to be adopted at the time the ordinance was heard.
Since other portions of the ordinance on the same topic (ex -paste discussions on land use matters, quasi- judicial
hearing procedures) were clearly adopted and codified, this section should be specifically included as originally
intended so there is no doubt as to the Board's intention. "If adopted by county... ordinance or resolution,
adherence to the following procedures shall remove the presumption of prejudice arising from ex parte
communications with local officials." The ordinance must be adopted with the text as written in the statute.
While the Administrative Procedures provide for disclosure, the wording is not exactly the same as the statutory
language. Adherence to these procedures of disclosure will remove the presumption of prejudice that may arise
from ex parte communications with county officials. The ordinance provides that the BOCC Administrative
Code, which currently prohibits ex -paste communications, shad be amended to reflect these changes, and those
in Ordinance No. 035-2010.
PREVIOUS RELEVANT BOCC ACTION:
11 / 17/ 10 Ordinance No.: 03 5-2010
CONTRACT/AGREEMENT CHANGES:
NIA
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST: NIA INDIRECT COST: BUDGETED: Yes No
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY: NIA SOURCE OF S: NIA
REVENUE PRODUCING: Yes x No AMOUNT PER MONTH Year
APPROVED BY: County Atty _ OMB/Purchasing I Risk Management
DOCUMENTATION: Included x Not Required _
DISPOSITION: AGENDA ITEM #
* 3:00 P.M. PUBLIC G *
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 1 I17I10 -
Bulk Item: Yes No X
Division: Countv Attorney -
Staff Contact: Suzanne Hutton. #3473
AGENDA ITEM WORDING:
A public hearing for an or 'twncec Monroe County Code Chapter 2, Article III Division 7
providing for quasi-judicial proceedings and ex parte co 'cations and, as allowed pursuant to F.S.
286.0115, officially adopting by resolution or ordinance the statutory re9.uirements set forth in
hs 1 through 4 of subsection (c) of Sec. 285.0115, Florida Statutes.
ITEM BACKGROUND:
Government in Florida is conducted `yin the sunshine" pursuant to Chapter 286, Florida Statutes
enabling the public to voice its opinions to local elected public officials. Subsequent to a coin decision
find. ubseq
an ex--parte communication to create a rebuttable presumption of prejudice and suD'icient. if not
rebutted, to invalidate a quasi-judicial action taken by a county co 'on, the le ' tore enacted Sec.
285.0115, Florida Statutes which sets forth certain requirements regarding access to local public
officials in connection with subsequent quasi-judicial proceedings, xwdcubrl r such on local
.�
government iand use matters. This ordinance creates a section in the Monroe County Code setting
forth the Procedures specified in p hs 1 through 4 of subsection (c) of Sec. 286.0115 Florida
Statutes. Adherence to these procedures will remove the presu�tian of prejudice that ma arise from
ex pane co bons with county officials.y
PREVIOUS RELEVANT BOCC ACTION:
10/20/10 DOCC approved public for 11/17/10 @a 3:00 p.m. in Ivey Largo, FL
CO CTIAGREEM ENT CHANGES: N/A
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST: N/A INDIRECT COST: BUDGETED: Yes No
Dla- ERE OF LOCAL PREFERENCE:
COST TO COUNTY: NIA SOURCE OF S: NIA
REVENUE PRODUCING: Yes x No AMOUNT PER MOIITTH Year
APPROVED BY: County Atty OMB/Purchasing Risk ement
DOCUMENTATION: Included x Not Required
DLSPOSITTON: AGENDA ITEM #
Revised 2105
ORDINANCE NO. 035 — 2010
AN ORDINANCE CREATING MONNROE COUNTY CODE CHAPTER 2,
ARTICLE III, DIVISION 7; PROVIDING FOR QUASI-JUDICIAL
PROCEEDINGS AND EX -PARTS 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 -parse 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
WI�REAS, Section 286.0115, Florida Statutes sets forth certain requirements g
re ardin the
regardingaccess to local public officials in connection with subsequent quasi-judicial , proceedin sparticularly
g P Y
such hearings on local government land use matters; and
1NAHEREAS, 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 b ordinance or
y
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. asi-udicial Proceedin
(a) Definitions.
(1) Local public official means any elected or appointed public official holding a count office
y
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.
y
(2) Ex parte communications mean communications made in the absence of one or more of
the affected parties.
Quasi -Judicial Proceedings and Ex Parte Communications
(3) Quasi-judicial 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 rile
through which that policy is implemented.
(b) 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.
(c) Ex Pane 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 may expert
rt
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.
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 pane 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 Pane Communications.
Pursuant to court opinions regarding unfair labor practices, no ex pane 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 OuminAudicial Proceedin
Individual boards and commissions having authority to perform quasi-judicial functions, such
as the Board of County Commissioners, Planning Commission, Contractors Ex g Board,
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 explainin
g
any direct evidence but shall not be sufficient in itself to support a finding 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 Governine QMasiaiudicial Proceedin 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 appropriate. A party or party -intervenor in a j - uasiudicial
q �
proceeding on local government land use matters, upon request by another art art -
party or P Y
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.
P
(2) In a quasi-judicial proceeding on local government land use matters, a person not be
Pe may
precluded from communicating directly with a member of the decision -making body b
g Y Y
application of ex party communication prohibitions. Disclosure of such communications b a
member of the decision-makingbody Y
y is not required, and such nondisclosure shall not be
Quasi -Judicial Proceedings and Ex Parte Communications
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
must be supported by substantial, competent evidence in the record pertinent to the proceeding,
irrespective of such communications.
SECTION 2. INCLUSION IN THE BDCC 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. 1f 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.
SECTIONS, 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. EFFEUrIVE 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 y County Commissioners of Monroe County,
Florida, at a regular meeting of said Board held on the 17'h day of November, 2010. �
�-C=
rn
Mayor Heather Carruthers Yes
Mayor Pro Tem David Mice Yes = cry
Commissioner George Neugent Yes __ ; •- :=�
missioner Sylvia Murphy Yes -� - p*
sea
loner Kim Wigington Yes
L. KOLHAGE, Clerk
D.C.,
ty Clerk
Quasi -Judicial Proceedings and Ex Parte Communications
mc
W
co
BOARD OF COUNTY CONRMSIONERS
OF MONROE CO , FLORIDA
By •01
Wyor/ClairWrson
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MONROE COUNTY COURTHOUSE
500 WHITEHEAD STREET, SUITE 101
KEY WEST. FLORIDA .13040
TEL. (305) 294-4641
FAX (305) 295-3663
BRANCH OFFICE:
MARATHON SUB COURTHOUSE
3117 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
TEL. (305) 289-6027
FAX (305) 289-1745
CLERIC OF THE CIRcurr CDURT
MONROE COUNTY
www.derk-of-the-court.com
Ms. Liz Cloud, Program Administrator
Administrative Code & Weekly
R.A. Gray Building
500 S B ronough Street
Tallahassee FL 32399-0250
Dear Ms. Cloud,
December 6, 2010
BRANCH OFFICE:
PLANTATION KEY
GOVERNMENT CENTER
88820 OVERSEAS HIGHWAY
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852-7145
FAX (305) 852-7146
ROTH BUILDING
50 Himi POINT ROAD
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852-7145
FAX (305) 853-7440
Via Certified Mail 70101670 00010244 7556
Enclosed please find certified copy of Ordinance No. 035-2010 creating Monroe County
Code Chapter 2, Article III, Division 7 providing for quasi-judicial proceedings and ex-P arte
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
Section 286.0115, Florida Statutes.
This Ordinance was adopted by the Monroe County Board of County Commissioners at a
Regular Meeting, held in formal session, on November 17, 2010. Please file for the record.
Should you have any questions please feel free to contact me at (305) 295-3130.
Respectfully submitted,
Danny L. Kolhage
Clerk of the Circuit Court
and ex officio Clerk to the
Board of County Commissioners
by: Pamela G. Hancock, D.C.
cc: Municipal Code via e-mail
County Attorney via e-mail
BOCC via e-mail
File
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