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Item Q8BOARD OF COUNTY COMMISSIONERS Agenda Item Summary Meeting Date October 20, 2004 Division County Attorney AGENDA ITEM WORDING Approval to advertise an Ordinance establishing the Office of County Attorney and providing for the qualifications and duties of the County Attorney and Assistant County Attorneys. ITEM BACKGROUND PREVIOUS RELEVANT BOCC ACTION CONTRACT/AGREEMENT CHANGES STAFF RECOMMENDATIONS Approval to advertise for one public hearing on December 15, 2004 in Marathon. TOTAL COST BUDGETED Yes No COST TO COUNTY SOURCE OF FUNDS APPROVED BY: County Attorney ■ OMB/Purchasing Risk Management DIVISION DIRECTOR APPROVAL• LI�t S o J. R. COLLINS DOCUMENTATION: Included AGENDA ITEM * (S� (� ORDINANCE NO. - 2004 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 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. 1 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. 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 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 2 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 Attornev. 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 3 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. 4 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) Attend all meetings of the Board of County Commissioners. 10) 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. Employment 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 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 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. Inorder 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 2 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 7 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 and the County Risk Manager, 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 Liens. The County Attorney shall have the authority to compromise or settle any code enforcement lien 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. Recoupment 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. E 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 day of 2004. Mayor Nelson Mayor Pro Tem Rice Commissioner McCoy Commissioner Neugent Commissioner Spehar (SEAL) Attest: DANNY L.KOLHAGE, Clerk By Deputy Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By Mayor/Chairperson Approved As To Form: Jon R. Collins, County Attorney Date: IAA 0 10