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Item O09C ounty of M onroe {f `° " rel BOARD OF COUNTY COMMISSIONERS n Mayor David Rice, District 4 IleOI1da Keys y m 1 �� Mayor Pro Tern Sylvia J. Murphy, District 5 ti Danny L. Kolhage, District 1 George Neugent, District 2 Heather Carruthers, District 3 County Commission Meeting September 19, 2018 Agenda Item Number: 0.9 Agenda Item Summary #4702 BULK ITEM: No DEPARTMENT: County Attorney's Office TIME APPROXIMATE: STAFF CONTACT: Pedro Mercado (3035) 292 -3470 no AGENDA ITEM WORDING: Discussion of Land and Water Conservation Fund (L &WCF) Grant Issue regarding Higgs Beach — Impact on non -L &WCF (NPS) grants ITEM BACKGROUND: At the July 31" budget hearing the BOCC, in conjunction with its review of the County's capital projects, requested that the County Attorney's Office opine on the possible ramifications of unilaterally moving forward with the relocation of Atlantic Blvd. as part of the Higgs Beach master plan. The full opinion is attached. In short, proceeding forward unilaterally could jeopardize federal funding but the County would have the right to challenge any adverse action taken prior to the loss of any funding. PREVIOUS RELEVANT BOCC ACTION: None CONTRACT /AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: DOCUMENTATION: Memo - Effect of LWCF (Higgs Beach) grant issue on non LWCF grants FINANCIAL IMPACT: Effective Date: N/A Expiration Date: N/A Total Dollar Value of Contract: N/A Total Cost to County: N/A Current Year Portion: N/A Budgeted: N/A Source of Funds: N/A CPI: Indirect Costs: Estimated Ongoing Costs Not Included in above dollar amounts: Revenue Producing: Grant: County Match: Insurance Required: Additional Details: If yes, amount: N/A REVIEWED BY: Bob Shillinger Completed 09/04/2018 1:57 PM Bob Shillinger Completed 09/04/2018 1:57 PM Budget and Finance Completed 09/04/2018 3:17 PM Maria Slavik Skipped 09/04/2018 1:57 PM Kathy Peters Completed 09/04/2018 4:07 PM Board of County Commissioners Pending 09/19/2018 9:00 AM August 29, 2018 To: Bob Shillinger Re: Land and Water Conservation Fund (L &WCF) Higgs Beach Grant Issue — Impact on non - L &WCF (NPS) grants From: Pedro J. Mercado, Assistant County Attorney The terms of the L &WCF grant are governed by the Department of the Interior, National Park Service (NPS), Land and Water Conservation Fund State Assistance Program Federal Financial Assistance Manual. Chapter 8 Section N of the manual sets forth the possible sanctions /penalties that may be imposed for failing to comply with the L &WCF Grant terms. If the NPS determines that there has been a violation, pursuant to 43 CFR part 12.83 the NPS "may withholds payment of federal funds to the State on account of such project, withhold funds for other projects of the State, withhold approval of further projects of the State and take such other action deemed appropriate, including debarment and suspension ". 43 CFR part 12.83 specifically references "awards for the program" which in this case is the Land and Water Conservation Fund Program. It would therefore appear that suspension of any grant funding would be limited to funding derived from the L &WCF program however, there is a large caveat. The federal funding of this program is administered by the State (Florida Department of Natural Resources) and under 43 CFR part 12.83 the withholding and /or suspension of funds could apply to State projects funded under the program as well. There is a right of appeal to the enforcement action under 43 CFR part 12.83 and the NPS is required to provide the County with an opportunity for an appeal, or other administrative proceeding, to which the County may be entitled to under "any statute or regulation applicable to the action. I have also consulted with the Federal Aviation Administration's (FAA) Regional Airport Compliance Specialist, who oversees the County's compliance with the FAA's grant assurances to which the County is obligated, to ensure that my interpretation of the Code of Federal Regulations (CFR) is correct. In my opinion, based upon my interpretation of the applicable CFR's, a potential violation in one program does not affect awards from other programs. The grant compliance specialist's concern, at least from the FAA's perspective, is that the county is working towards compliance whether through negotiations or litigation. I would also note that I have not found either in the actual grant applications themselves or in the CFR's any requirement that an entity self - disclose any instance of grant violation in the application process. The greater concern is that under that the 43 CFR part 12.83 enforcement remedies also subject the County to Suspension and Debarment. A suspension (2 CFR 180.700) may be imposed when (a) There exists an indictment for, or other adequate evidence to suspect, an offense listed under §180.800(a), or (b) There exists adequate evidence to suspect any other cause for debarment listed under §180.800(b) through (d); and (c) Immediate action is necessary to protect the public interest. Debarment (2 CFR 180.800) may be imposed for (a) Conviction of or civil judgment for (1) Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or private agreement or transaction; 2) Violation of Federal or State antitrust statutes, including those proscribing price fixing between competitors, allocation of customers between competitors, and bid rigging; (3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, receiving stolen property, making false claims, or obstruction of justice; or (4) Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects your present responsibility; (b) Violation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program, such as (1) A willful failure to perform in accordance with the terms of one or more public agreements or transactions; (2) A history of failure to perform or of unsatisfactory performance of one or more public agreements or transactions; or (3) A willful violation of a statutory or regulatory provision or requirement applicable to a public agreement or transaction; (c) Any of the following causes: (1) A nonprocurement debarment by any Federal agency taken before October 1, 1988, or a procurement debarment by any Federal agency taken pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995; (2) Knowingly doing business with an ineligible person, except as permitted under §180.135; (3) Failure to pay a single substantial debt, or a number of outstanding debts (including disallowed costs and overpayments, but not including sums owed the Federal Government under the Internal Revenue Code) owed to any Federal agency or instrumentality, provided the debt is uncontested by the debtor or, if contested, provided that the debtor's legal and administrative remedies have been exhausted; (4) Violation of a material provision of a voluntary exclusion agreement entered into under §180.640 or of any settlement of a debarment or suspension action; or (5) Violation of the provisions of the Drug -Free Workplace Act of 1988 (41 U.S.C. 701); or (d) Any other cause of so serious or compelling a nature that it affects your present responsibility. The effect of a suspension or debarment by any one agency has a government wide effect and would suspend /debar the County's eligibility to receive grants for the suspension /debarment period. The Department of Interior through implementing regulation found at 2 CFR 1400 adopted the government wide suspension and debarment procedures located at 2 CFR part 180 and found in Subpart F, Subpart G and Subpart H. A suspending official may take immediate action to protect the public interest (2 CFR 180.705 — Subpart G). In order to take the suspension action, the official must; 1) have adequate evidence that there may be a cause for debarment; and 2) conclude that immediate action is necessary to protect the Federal interest (2 CFR 180.605 - Subpart F). In the event of a suspension or debarment notice the county will be given an opportunity to submit a response to contest the notice (2 CFR 180.735 - Subpart G). The County would not be given any additional opportunity to contest the facts, if the suspension is; 1) based on an indictment, conviction, civil judgement, or other finding by a Federal, State, or local body where the County had an opportunity to contest the facts, or 2) if the County files an objection containing only general denials, or 3) the issues presented by the county are not factual in nature or material to the proceeding, or 4) if the fact finding procedure would prejudice the legal proceedings of an office of the United States Attorney, a State's attorney general's office or a state prosecutor's office. However, under 2 CFR 180.735(b) the county would be entitled to challenge the facts the suspension is based on if the suspending official determines that the conditions enumerated in 1 -4 above do not exist and the county's response to the suspension raises a genuine dispute over facts material to the suspension. The suspending official is then required to conduct additional proceedings where the County would be entitled to present witnesses and other evidence (2 CFR 18.745). (The CFR contains similar provisions for debarment proceedings codified at 2 CFR 180.830 — subpart H.) In conclusion, I am confident that so long as we are working towards compliance with the LWCF grant, which may include litigation to determine whether the movement of the road and the conversion of the current roadway into recreational area is equivalent and complies with the grant requirements then no other grants will be impacted. Lastly, while the likelihood of suspension or debarment, in my opinion is remote and the county would be entitled to due process in the proceeding as outlined above, in the event of an actual finding of suspension or debarment then all of the county's federal grants would be withheld.