Item Q03 Q.3
t, BOARD OF COUNTY COMMISSIONERS
County of Monroe Mayor Sylvia Murphy,District 5
The Florida Keys l'U � � Mayor Pro Tern Danny Kolhage,District 1
�pw° Michelle Coldiron,District 2
Heather Carruthers,District 3
David Rice,District 4
County Commission Meeting
October 16, 2019
Agenda Item Number: Q.3
Agenda Item Summary #6104
BULK ITEM: Yes DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger(305) 292-3470
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AGENDA ITEM WORDING: Approval of a contract for legal services with Chris Ambrosio, Esq.
to provide consultation and assistance to the County Attorney's Office during the transition to his
replacement effective no sooner than October 17, 2019 and terminating December 31, 2019.
ITEM BACKGROUND: Assistant County Attorney Chris Ambrosio is leaving the County
Attorney's Office to work as General Counsel for the City of Jacksonville Beach ("City"). His last
day working for the County will be October 15, 2019. He will start at the City on October 21, 2019.
Mr. Ambrosio has unique institutional knowledge of certain County projects and project documents
being handled by the Project Management and Facilities Maintenance Departments, as well as the
County Attorney's Office.
As of the agenda deadline, the County Attorney has not hired a replacement for Mr. Ambrosio. The
proposed agreement will allow for the County to benefit from Mr. Ambrosio's institutional memory
and familiarity of ongoing projects until his replacement can be hired and brought up to speed.
Under the agreement, Mr. Ambrosio will provide guidance to his replacement. The agreement
specifies that Mr. Ambrosio will provide no legal representation and make no Court appearances or
perform work on behalf of the County in any legal proceedings or matters in litigation.
Under the agreement, the County will be billed at a rate of $75.00/hour for Mr. Ambrosio's time.
Compensation under the agreement is capped at $49,999 unless the BOCC grants prior approval for
an increase beyond that amount. The agreement as proposed will take effect no sooner than October
17, 2019, and terminate on December 31, 2019, unless terminated earlier by either party.
The County Attorney previously sought an opinion from the Florida Commission on Ethics with
respect to a similar arrangement for another employee who was leaving County service. In CEO 14-
24, the Ethics Commission advised that such a relationship would not violated the Florida Ethics
Code. Prior to completing this agenda item, the County Attorney received confirmation from Ethics
Commission staff that the prior opinion was still valid and that the facts presented here fell within
the scope of that opinion.
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PREVIOUS RELEVANT BOCC ACTION: None.
CONTRACT/AGREEMENT CHANGES:
New contract
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Agreement between Monroe County and Chris Ambrosio 2019
Commission on Ethics Opinion 14-24
FINANCIAL IMPACT:
Effective Date: October 21, 2019
Expiration Date: December 31, 2019
Total Dollar Value of Contract: No more than $49,999.00
Total Cost to County: No more than $49,999.00
Current Year Portion: To be determined
Budgeted: Yes
Source of Funds: Ad valorem, 304 fund
CPI: n/a
Indirect Costs: n/a
Estimated Ongoing Costs Not Included in above dollar amounts: n/a
Revenue Producing: No If yes, amount: n/a
Grant: n/a
County Match: n/a
Insurance Required: n/a
Additional Details: Board approval needed to exceed$50,000 cap.
The work will involve projects that are funded by the 304 fund and by the County Attorney's
general fund account. Payment of the invoices will be based on the projects worked on and
apportioned between these two accounts. The amounts provided below are estimates.
10/17/19 304-22004 - COUNTY ENGINEER CONSTR M $37,500.00
10/17/19 001-67501 - COUNTY ATTORNEY GENERAL $12,499.00
Total: $49,999.00
REVIEWED BY:
Bob Shillinger Completed 10/01/2019 11:47 AM
Bob Shillinger Completed 10/01/2019 12:14 PM
Budget and Finance Completed 10/01/2019 3:24 PM
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Q.3
Maria Slavik Completed 10/01/2019 3:43 PM
Kathy Peters Completed 10/01/2019 4:36 PM
Board of County Commissioners Pending 10/16/2019 9:00 AM
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AGREEMENT BETWEEN MONROE COUNTY AND CHRIS AMBROSIO
THIS AGREEMENT (hereinafter the "Contract" or "Agreement") is made and entered
into this 16' day of October, 2019, between the Monroe County Board of County Commissioners
(hereinafter the "County" or the "Board") and Chris Ambrosio, Esq. (hereinafter "Ambrosio" or
"Contractor").
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WHEREAS, Ambrosio has worked for the Monroe County Attorney's Office as an
Assistant County Attorney for approximately five years,and has particular and unique institutional
knowledge with certain County projects and the associated projects documents being handled by
the Project Management and Facilities Maintenance Departments and the County Attorney's
Office ("County Departments"); and
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WHEREAS, Ambrosio has accepted a position to serve as the General Counsel for the a
City of Jacksonville Beach ("City"), effective October 21, 2019; and
WHEREAS, October 15, 2019 will be Ambrosio's last date of employment with Monroe
County;
WHEREAS, during the transition period between Ambrosio and his replacement, the
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County Attorney desires to engage and hire Ambrosio on an hourly, as-need basis to provide N
consultation, aid and assistance on matters that Ambrosio previously handled and worked on for
the County Departments, to assist, guide and train his replacement attorney (collectively,
"Services"}; and
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WHEREAS, the Services that Ambrosio will provide under this agreement specifically
excludes making an appearance on paper or in person or be attorney of record on behalf of the
County, in any legal proceeding, case or litigation in any court system; and
WHEREAS, Ambrosio agrees to render the Services more specifically described below in
Section III. Limited Scope of Services,and the County agrees to allow Ambrosio to use his County 0
issued laptop computer and cellphone to provide the Services until the County Attorney determines
a time for Ambrosio to return these items to the County Attorney's office; and e
WHEREAS,the Ethics Commission staff has advised that if Mr. Ambrosio's employment
with the County Attorney's Office is terminated the day before the Board approves this agreement,
any issue with respect to the Florida Code of Ethics would be avoided.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained
herein, the parties agree as follows:
SECTION I. RECITALS. The foregoing recitals are true and correct and are hereby
incorporated as if fully stated herein.
SECTION II. EFFECTIVE DATE. The effective date of this Contract shall be upon
execution by the second party to the agreement but under no circumstances shall it be effect no
sooner than October 17, 2019.
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SECTION III. LIMITED SCOPE OF SERVICES. Ambrosio shall provide the
following Limited Scope of Services:
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1. Provide consultation, aid and assistance in the form of telephone/video conferences,
review of materials and respond to emails, communications and calls from County
staff and attorneys on matters that Ambrosio previously handled and worked on for
the County Departments, and assist, guide and train his replacement attorney.
2. Ambrosio shall have no participation or role, and make no appearance on paper or in
person, in any legal proceeding or case on behalf of the County. Ambrosio shall not
represent,make no representations to third parties and execute no document on behalf
of the County.
3. Ambrosio will not be required to travel for the County nor incur any overhead costs, U
travel costs or expenses, and he shall not be reimbursed for any such costs or 0
expenses. This Contract includes no reimbursable work or expenses beyond the
hourly compensation set forth below in Section IV. (n
4. Ambrosio is not expected to conduct legal research. But he may be asked to research
and review the County materials, files, sources and directories that are accessible on
his County laptop computer in order to provide consultation, aid and assistance to
staff and guide, aid and train his replacement attorney.
5. Ambrosio shall create no financial obligations, responsibility or debt on the part of
the County, and he shall assume no financial obligations for the Services he provides
under this Contract.
6. Ambrosio shall provide these limited Services from the effective date of this Contract
through and including to December 31, 2019.
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SECTION IV. COMPENSATION. Compensation for Ambrosio's Services under this
Contract shall be at the rate of$75.00 per hour (rounded to the nearest tenth hour for each time
entry).
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SECTION V. PAYMENT. The total dollar amount of this Contract shall not exceed
$49,999.99 without prior approval of the Board. On December 31, 2019, Ambrosio will submit to
the County Attorney's office a complete, detailed, itemized, descriptive time record invoice that o
records the project or subject matter,date and times worked, the names of others who were present
or involved in the course of performing the Services, and the fees associated for the work on a
request for payment form satisfactory to the County Attorney's and Clerk of Court's offices.
Ambrosio will submit payment requests only for time necessarily incurred to render Services to
the County in accordance with this Contract. Acceptability to the Clerk of Court is based on E
generally accepted accounting principles and such laws, rules, and regulations as may govern the
Clerk's disbursal of funds. Payment will be made according to the Florida Local Government
Prompt Payment Act Section 218.70 Florida Statutes. Any request for payment must be made in a
form satisfactory to the Clerk of Courts. The County's performance and obligation to pay under
this Contract is contingent upon an annual appropriation by the Board of County Commissioners
and the approval of the Board members at the time of Contract initiation. Payment to Contractor
shall be made payable in the name of Chris Ambrosio and mailed to 425 Timberwalk Ct. 41127,
Ponte Vedra Beach, FL 32082.
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SECTION VI. TERM, TERMINATION AND NOTICE REQUIREMENTS. This
Contract shall become legally effective as provided for in Section II. above, and shall continue in
effect until December 31, 2019. This Contract shall automatically terminate at close of business
on December 31, 2019. Either party may cancel this Contract for any reason with five (5) days'
written notice to the other party. Notice to the County shall be provided to the County Attorney
Robert Shillinger, Esq. at Shil li nger-Bob@Monro eCounty-FL.Gov. Notice to Contractor shall be
provided to Chris Ambrosio, Esq. at Chrisambrosio2003�'oyahoo.com. Upon termination U
Ambrosio shall provide the required time record invoice and payment request to the County
Attorney in accordance with Section V. above. Compensation shall be paid to Ambrosio for the
services provided up to and including the termination date.
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SECTION VII.INDEPENDENT CONTRACTOR. During the duration of this Contract U
and for all purposes hereunder,Ambrosio is an independent contractor and not an employee of the 0
County.No statement contained in this Agreement shall be construed so as to find Ambrosio to be
an employee of the County, and he shall be entitled to none of the rights, privileges or benefits of (n
County employees. After October 15, 2019, Ambrosio will no longer be an employee of Monroe
County, and beginning on October 21, 2019, he shall be only an employee of the City.
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SECTION VIII. MODIFICATIONS AND AMENDMENTS; ENTIRE CD
AGREEMENT. Any modifications and Amendments of this Agreement shall be in writing and
executed and approved by the Board and Ambrosio in the same manner as this Agreement. The
entire Agreement between the County and Ambrosio of the subject matter hereof is contained in
this Agreement. This Agreement supersedes all oral and written communications between the
County and Ambrosio related to this Agreement.No provision of this Agreement shall be deemed
waived, amended or modified by either party unless such waiver, amendment or modification is �s
in writing and signed by the parties.
SECTION IX. PUBLIC RECORDS COMPLIANCE. Contractor must comply with
Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 0
24 of article I of the Constitution of Florida. The County and Contractor shall allow and permit
reasonable access to, and inspection of, all documents, records, papers, letters or other "public
record" 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 Contractor in conjunction with this
contract and related to contract performance. The County shall have the right to unilaterally cancel 3
this contract upon violation of this provision by the Contractor. Failure of the Contractor to abide
by the terms of this provision shall be deemed a material breach of this contract and the County
may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing
party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding.
This provision shall survive any termination or expiration of the contract.
The Contractor is encouraged to consult with its advisors about Florida Public Records
Law in order to comply with this provision. E
Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Contractor is c,
required to:
(1) Keep and maintain public records that would be required by the County to perform
the service.
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(2) Upon receipt from the County's custodian of records,provide the County with a copy
of the requested records or allow the records to be inspected or copied within a reasonable time at
a cost that does not exceed the cost provided in this chapter or as otherwise provided by law.
(3) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law for the duration of
the contract term and following completion of the contract if the contractor does not transfer the
records to the County.
(4) Upon completion of the contract, transfer, at no cost, to the County all public
records in possession of the Contractor or keep and maintain public records that would be required
by the County to perform the service. If the Contractor transfers all public records to the County
upon completion of the contract, the Contractor shall destroy any duplicate public records that are
exempt or confidential and exempt from public records disclosure requirements. If the Contractor
keeps and maintains public records upon completion of the contract, the Contractor shall meet all U
applicable requirements for retaining public records. All records stored electronically must be 0
provided to the County, upon request from the County's custodian of records, in a format that is
compatible with the information technology systems of the County. (n
(5) A request to inspect or copy public records relating to a County contract must be
made directly to the County, but if the County does not possess the requested records, the County
shall immediately notify the Contractor of the request,and the Contractor must provide the records
to the County or allow the records to be inspected or copied within a reasonable time.
If the Contractor does not comply with the County's request for records, the County shall
enforce the public records contract provisions in accordance with the contract, notwithstanding the
County's option and right to unilaterally cancel this contract upon violation of this provision by
the Contractor. A Contractor who fails to provide the public records to the County or pursuant to
a valid public records request within a reasonable time may be subject to penalties under Section
119.10, Florida Statutes.
The Contractor shall not transfer custody, release, alter, destroy or otherwise dispose of
any public records unless or otherwise provided in this provision or as otherwise provided by law.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION
OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS, BRIAN BRADLEY AT PHONE# 305-292-3470
BRADLEY-BRIAN@MONROECOUNTV-FL.GOV, MONROE COUNTY ATTORNEY'S
OFFICE 1111 12TH Street, SUITE 408, KEY WEST, FL 33040.
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SECTION X.RIGHT TO AUDIT AND AVAILABILITY OF RECORDS.The records
of the parties to this Agreement relating to the Project, which shall include but not be limited to
accounting records (hard copy, as well as computer readable data if it can be made available;
subcontract files (including proposals of successful and unsuccessful bidders, bid recaps, bidding
instructions, bidders list, etc); original estimates; estimating work sheets; correspondence; change
order files (including documentation covering negotiated settlements); backcharge logs and
supporting documentation; general ledger entries detailing cash and trade discounts earned,
insurance rebates and dividends; any other supporting evidence deemed necessary by County to
substantiate charges related to this agreement, and all other agreements, sources of information
and matters that may in County's reasonable judgment have any bearing on or pertain to any
matters, rights, duties or obligations under or covered by any contract document (all foregoing
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hereinafter referred to as "Records") shall be open to inspection and subject to audit and/or
reproduction by County's representative and/or agents of County. County may also conduct
verifications such as, but not limited to, counting employees at the job site, witnessing the
distribution of payroll, verifying payroll computations, overhead computations, observing vendor
and supplier payments, miscellaneous allocations, special charges, verifying information and
amounts through interviews and written confirmations with employees, Subcontractors, suppliers,
and contractors representatives. All records shall be kept for ten(10) years after Final Completion.
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Contractor shall maintain all books, records, and documents directly pertinent to performance
under this Agreement in accordance with generally accepted accounting principles consistently
applied. Each party to this Agreement or their authorized representatives shall have reasonable and
timely access to such records of each other party to this Agreement for public records purposes
during the term of Agreement and for four years following the termination of this Agreement. U
If an auditor employed by the County or Clerk determines that monies paid to Contractor pursuant 0
to this Agreement were spent for purposes not authorized by this Agreement, the Contractor shall
repay the monies together with interest calculated pursuant to Sec. 55.03, Florida Statutes, running (n
from the date the monies were paid to Contractor. @
SECTION XI. GOVERNING LAW, VENUE, INTERPRETATION, COSTS, AND
FEES: This Agreement shall be governed by and construed in accordance with the laws of the
State of Florida applicable to contracts made and to be performed entirely in the State. In the event
that any cause of action or administrative proceeding is instituted for the enforcement or
interpretation of this Agreement, the County and Contractor agree that venue shall lie in the
appropriate court or before the appropriate administrative body in Monroe County, Florida. The
Parties waive their rights to trial by jury. The County and Contractor 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.
SECTION XII. NONDISCRIMINATION. The parties agree that there will be no 0
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 any party,effective the date of the court order.
The parties agree to comply with all Federal and Florida statutes, and all local ordinances, as
applicable, relating to nondiscrimination. These include but are not limited to: 1)Title VII of the
Civil Rights Act of 1964 (PL 88-352), which prohibit discrimination in employment on the basis
of race, color, religion„ sex,and national origin; 2)Title IX of the Education Amendment of 1972,
as amended (20 1JSC §§ 1681-1683, and 1685-1686), which prohibits discrimination on the basis E
of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC § 794), which
prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as
amended(42 USC §§ 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 91616), as amended, relating to nondiscrimination
on the basis of alcohol abuse or alcoholism; 7)The Public I Iealth 'Service Act of 1912, §§ 523 and
527(42 USC §§ 690dd-3 and 290ee-3),as amended,relating to confidentiality of alcohol and drug
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abuse patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC §§ 3601 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 §§ 1201),as amended from time to time,relating
to nondiscrimination in employment on the basis of disability; 10) Monroe County Code Chapter
14, ArticIe VII, which prohibits discrimination on the basis of race, color, sex, religion, national 0
origin, ancestry, sexual orientation, gender identity or expression, familial status or age; and 11)
any other nondiscrimination provisions in any federal or state statutes which may apply to the
parties to, or the subject matter of, this Agreement. �s
SECTION XIII. COVENANT OF NO INTEREST. County and Contractor covenant
that neither presently has any interest, and shall not acquire any interest, which would conflict in
any manner or degree with its performance under this Agreement, and that only interest of each is
to perform and receive benefits as recited in this Agreement. U
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SECTION XIV. CODE OF ETHICS. County agrees that officers and employees of the it
County recognize and will be required to comply with the standards of conduct for public officers (n
and employees as delineated in Section 112.313, Florida Statutes, regarding, 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.
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SECTION XV.NO SOLICITATIONIPAYMENT. The County and Contractor warrant
that, in respect to itself, it has neither employed nor retained any company or person, other than a 0
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 �s
contingent upon or resulting from the award or making of this Agreement. For the breach or
violation of the provision, the Contractor agrees that the County 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. 0
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SECTION XVI. NON-WAIVER OF IMMUNITY. Notwithstanding the provisions of
Sec. 768.28, Florida Statutes,the participation of the Contractor and the County 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.
SECTION XVII. PRIVILEGES AND IMMUNITIES. 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 the County, when performing their
respective functions under this Agreement within the territorial limits of the County shall 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.
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SECTION XVIII. LEGAL OBLIGATIONS AND RESPONSIBILITIES. Non-
Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it
be construed as, relieving any participating entity from any obligation or responsibility imposed
upon the entity by law except to the extent of actual and timely performance thereof by any
participating entity, 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 T
extent permitted by the Florida constitution, state statute, and case law.
SECTION XIX. NON-RELIANCE BY NON-PARTIES. No person or entity shall be
entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce
any third-party claim or entitlement to or benefit of any service or program contemplated
hereunder, and the County and the Contractor agree that neither the County nor the Contractor or U
any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise 0
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 (n
general or for the purposes contemplated in this Agreement. @
SECTION XX. 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 Monroe County in his or her individual capacity, and no member, officer, agent or employee of
Monroe County shall be liable personally on this Agreement or be subject to any personal liability
or accountability by reason of the execution of this Agreement.
SECTION XXI. 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.
SECTION XXII.ADJUDICATION OF DISPUTES OR DISAGREEMENTS. County 0
and Contractor agree that all disputes and disagreements shall be attempted to be resolved by meet
and confer sessions between representatives of each of the parties. If the issue or issues are still
not resolved to the satisfaction of the parties, then any party shall have the right to seek such relief
or remedy as may be provided by this Agreement or by Florida law. This Agreement is not subject
to arbitration.
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SECTION XXIII. COOPERATION. In the event any administrative or Iegal proceeding
is instituted against either party relating to the formation, execution, performance,or breach of this E
Agreement, County and Contractor 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. County and Contractor
specifically agree that no party to this Agreement shall be required to enter into any arbitration
proceedings related to this Agreement.
SECTION XXIV.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
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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 Contractor 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.
SECTION XXV. ATTORNEY'S FEES AND COSTS. The County and Contractor agree
that in the event any cause of action or administrative proceeding is initiated or defended by any
party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees and court costs as an award against the non-prevailing party, U
and shall include attorney's fees and courts costs in appellate proceedings. 0
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SECTION XXVI. AUTHORITY. Each party represents and warrants to the other that the (n
execution, delivery and performance of this Agreement have been duly authorized by all necessary @
County and corporate action, as required by law. Each party agrees that it has had ample
opportunity to submit this Contract to legal counsel of its choice and enters into this Agreement
freely, voluntarily and with advice of counsel.
IN WITNESS WHEREOF, the parties have executed this Contract as indicated below.
(SEAL) BOARD OF COUNTY COMMISSIONERS OF
KEVIN MADOK, CLERK MONROE COUNTY, FLORIDA
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Deputy Clerk Mayor ..�.,
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Date: ate.
Contractor Signature: y m
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Chris Ambrosio
MONROE COUNTY ATTORNEY
APPR o o FORM:
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10/1/2019 CEO 14-24—September 17,2014
CEO 14-24—September 17, 2014
CONFLICT OF INTEREST
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v, EMPLOYEE CONTRACTING WITH IN TO BE DEPENDENT CONTRACTOR
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AFTER RETIREMENT
To:Robert B. Shillinger, r; Attorney
SUMMARY:
Under the particular circumstances presented, a prohibited conflict of interest would not be
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created under Section 112.313(3) or Section 112.313(7)(a), Florida Statutes, were a �,rfty
employee to enter into a post-public-employment consulting agreement with the �,rj'f.........�). CEO 08- E
14 is referenced.-! A
QUESTION:
Would a prohibited conflict of interest be created were a f �,rfty employee to enter into an
agreement with the �,rjo which sets out the terms and conditions by which the employee will 0
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serve as an independent contractor consultant for the f �,rjof.........) after the employee's retirement from U)
employment?
Under the circumstances presented, your question is answered in the negative.
You write that C11',,,,yf�,rfty's Deputy Administrator (employee), who has been a lrjo
employee for thirty-two years, has been in the Deferred Retirement Option Program (DROP) of the Florida
Retirement System (FRS) for two years, and that her scheduled end date of> l,rjo employment is in September 14
2017. Under DROP, an employee who is actually retired continues employment with an FRS employer, but the a
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retirement benefits that the employee would have received are deferred, and, together with interest, are deposited -E
in the employee's trust account until the employee's final termination date, which date can be no more than five
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years from the date the employee entered DROP. The Administrator and the employee have discussed 2U)
reorganization of> rrjof.........) senior staff after the employee's departure and have discussed the possibility that the
employee would leave r t trrrra employment before her current end date, possibly as early as October 2014. W
However, the employee has stated that she would accelerate her termination only if she could receive a 0
severance package that would provide the same contribution to her FRS trust account as if she had stayed in 5
DROP for the entire five years: a figure equivalent to about eighty-three weeks' of annual salary. Continuing,
you state that in light of the caps (twenty weeks' worth in some circumstances, six weeks' worth in others)under E
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Section 215.425, Florida Statutes, on the amount of severance pay that can be paid by a government entity, it s 5
impossible for the > �,rjo to offer the employee a severance package with the compensation she desires, based
solely on severance pay. However, you relate that the employee's longevity as a C.1',,,,yf rrjof.........) employee, her status as
a senior employee, and her institutional memory have great value to the I,rjo , and suggest that a post-public- E
employment consulting agreement may be a way for the C,1'f),f l,rj' to compensate the employee for the money that 8
otherwise would have been placed in her DROP account, without violating the caps of Section 215.425. The <
agreement would be negotiated and executed while the employee is a rrjof.........) employee and would require
approval of the Board of C,1',,,,),f�,rjo Commissioners; however, the employee would not begin her consulting work
until after she leaves rrjl employment.
Sections 112.313(3) and 112.313(7)(a), Florida Statutes, the provisions of the Code of Ethics for Public
Officers and Employees (Part 111, Chapter 112, Florida Statutes)relevant to your inquiry,?provide:
DOING BUSINESS WITH ONE'S AGENCY.No employee of an agency
acting in his or her official capacity as a purchasing agent, or public officer acting
in his or her official capacity, shall either directly or indirectly purchase, rent, or
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lease any realty, goods, or services for his or her own agency from any business
entity of which the officer or employee or the officer's or employee's spouse or
child is an officer, partner, director, or proprietor or in which such officer or
employee or the officer's or employee's spouse or child, or any combination of
them, has a material interest. Nor shall a public officer or employee, acting in a
private capacity, rent, lease, or sell any realty, goods, or services to the officer's or
employee's own agency, if he or she is a state officer or employee, or to any
political subdivision or any agency thereof, if he or she is serving as an officer or
employee of that political subdivision. The foregoing shall not apply to district
offices maintained by legislators when such offices are located in the legislator's
place of business or when such offices are on property wholly or partially owned
by the legislator. This subsection shall not affect or be construed to prohibit
contracts entered into prior to:
(a) October 1, 1975.
(b) Qualification for elective office.
(c)Appointment to public office.
(d) Beginning public employment.
[Section 112.313(3), Florida Statutes.]
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.—
No public officer or employee of an agency shall have or hold any employment or 0
contractual relationship with any business entity or any agency which is subject to U)
the regulation of, or is doing business with, an agency of which he or she is an .2
officer or employee . . .; nor shall an officer or employee of an agency have or
hold any employment or contractual relationship that will create a continuing or n
frequently recurring conflict between his or her private interests and the
performance of his or her public duties or that would impede the full and faithful
discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.] Iq
Section 112.313(3), considered in isolation, would appear to prohibit the employee and the from a
entering into the consulting contract, in that entry would constitute the employee's acting in a private capacity to °E
sell services to her political subdivision (the > lLl ). CEO 08-14. However, under the particular facts presented
in the instant situation, we find it appropriate to apply Section 112.316, Florida Statutes, to ameliorate the literal U)
effect of Section 112.313(3). It is apparent that the employee is not the decisionmaker for the regarding
whether to contract with her for post-public-employment consulting; rather, it is the lrlr Administrator and w
a �
the Board of r,.rlr Commissioners who will make the decision. Also, it is apparent that the is not c
engaging in a request for proposals or similar procurement, but, rather, that it would be developing a specific ,r
services/retirement package peculiar to its needs and those of the employee. Section 112.316 provides: U)
CONSTRUCTION. It is not the intent of this part, nor shall it be construed, 0
to prevent any officer or employee of a state agency or c,/,,,)7r,.LL� , city, or other
political subdivision of the state or any legislator or legislative employee from
accepting other employment or following any pursuit which does not interfere
with the full and faithful discharge by such officer, employee, legislator, or
legislative employee of his or her duties to the state or the f",,ity, city, or other
political subdivision of the state involved.
As to Section 112.313(7)(a), we do not perceive a prohibited conflict under the first part of the statute,
were the agreement between the employee and the ::y1 to be entered into, because in such a situation the
employee would hold a contractual relationship with her own ItILL`ro; government, which is neither a business
entity nor another governmental entity. Further, to the extent the employee would hold employment or a
contractual relationship with her own consulting business (CEO -1 ), a business entity doing business with
the C,1' It by virtue of the consulting agreement, we find that Section 112.316 likewise ameliorates the conflict,
under the particular circumstances presented. As to the second part of the statute, we see no continuing or
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frequently recurring conflict between the employee's private interests and the performance of her public auties
as a It employee, and we see no impediment to the full and faithful discharge of her public duties,
occasioned by the agreement. Again, it is the C. ,:It Administrator and the Board of C. )1 Commissioners
who will be acting for the r,.,l regarding negotiating and entering into the agreement, not the employee; and
we see no reason to believe the employee would be any less effective in her remaining service as a
employee due to the agreement.
Accordingly, under the circumstances presented, we find that a prohibited conflict of interest would not
be created under Section 112.313(3) or Section 112.313(7)(a), Florida Statutes,! were the employee and the
1LLr to enter into a post-public-employment consulting agreement.
ORDERED by the State of Florida Commission on Ethics meeting in public session on September 12, eg
2014, and RENDERED this 17th day of September, 2014.
a
T
�s
Linda McKee Robison, Chair
a
[1l Prior opinions of the Commission on Ethics may be obtained from its website(www.ethics.state.fl.us).
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[�1The post-public-employment restrictions of Sections 112.313(14), 112.313(9)(a)4.,and 112.3185,Florida Statutes,are not applicable to u)
former local government employees. 0
a�
131We express no opinion herein as to Section 215.425,Florida Statutes,inasmuch as it is not within our jurisdiction to do so.
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