TOWN OF MELBOURNE BEACH
MINUTES
TOWN COMMISSION - SPECIAL MEETING
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WEDNESDAY
JUNE 1, 2001
4:00 P.M.
COMMUNITY CENTER
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A special meeting of the Town Commission of the Town of Melbourne Beach, Florida was
called to order by Mayor Wille at 4:09 p.m. on Friday, June 1, 2001 in the Community Center.
Mayor Wille also led the Pledge of Allegiance to the Flag.
Present: Mayor Wille
Vice Mayor Remark
Commissioner Stacey
Commissioner Stark
Absent: Commissioner Smith
Others Present: Town Attorney Gougelman (left
meeting at 5:00 p.m.)
Attorney Andrew Hament
Mayor Bob Cochran, Indialantic
Police Chief Walters
Sergeant Bailey
Town Clerk Masny
Five members of the public
I. INDEMNIFICATION OF ALL TOWN OFFICERS (REQUESTED BY MAYOR WILLE)
Mayor Wille stated that this item is a result of the discussion of Chief Walters' conditional offer
to resign without an acknowledgment of what it could mean to all Town Officers is a release is
not signed as recommended by the Town Attorneys.
Town Attorney Gougelman referenced Florida Statute Sections 111.07 and 111.071 and advised
that the Town Officers, employees and agents can be defended in a lawsuit if the action is within
the scope of the official's duties, but, it also says if it is determined that the action was outside
the scope of your duties, you will be responsible for the damages.
For clarification, Town Attorney Gougelman referenced a case from Miami Beach for the Town
Commission stating that a City Commissioner did not get along with a certain land developer and
this Commissioner understood that the developer was to present building plans for a
development in Miami Beach. The Commissioner told the Building Official that when this
developer comes in, he will find problems with the plans and make the developer correct the
plans, and this process will be unending and the developer will never get his development permit.
When questioned by the Building Official about this, the Commissioner advised the Building
Official that if he wants to continue to work for the city, he will do as he is told and the Building
Official agreed. After a while, the developer figured out something was wrong and sued Miami
Beach and took a deposition of the Building Official in which the Building Official said that he
did this because the Commissioner told him to and the developer in turn filed a lawsuit against
the Commissioner in his personal capacity. The Commissioner said that he is a legislative
official and stated that the developer cannot sue him as this was done in his official capacity as
City Commissioner. Town Attorney Gougelman explained that this case went to the U.S, Court
of Appeals and the Court advised that the developer can sue the Commissioner in his personal
capacity. The Court advised the Commissioner that as long as he was acting within his duties
as an elected official and nowhere does it say that a Commissioner can harass people applying
for building permits.
Attorney Gougelman advised that this example shows malicious conduct, bad faith, and wanton
disregard of property and safety, therefore, the person can be liable and sued in his personal
capacity. Attorney Gougelman stated that sometimes the dividing line between personal capacity
and official capacity is a little gray. Attorney Gougelman stated that Florida Statute 111.07
allows that is a complaint is filed, and it appears it is personal capacity allegations, the city can
still defend you, but if ultimately the court determines that you are personally liable and not
officially liable, the city has the option of requesting the funds used to defend you.
Town Attorney Gougelman stated that in regard to the situation of the Police Chief's resignation
and events leading up to it, the Commissioners will be covered by the Town if there is a lawsuit,
if it is in the official capacity. Town Attorney Gougelman stated that the Town Commission has
the ability to set a policy with regard to indemnification.
Mayor Wille stated that the State gives the Town the authority to provide this coverage, it is not
automatic and the Town needs to exercise the authority for this to become policy. Vice Mayor
Remark asked if the Town can adopt this statute? Town Attorney Gougelman stated that it is
already authorized pursuant to the state law. Attorney Hament stated that in this case, this
Commission has the authority to adopt a policy that says this Commission, if there is a lawsuit,
believes the officials of this Town should be indemnified to the fullest extent authorized by State
Statute.
Town Attorney Gougelman asked that if there is a complaint against a Commissioner that is
based on something that may have been done while he or she was a Commissioner relating to the
Town, but it says it is against that Commissioner in his or her personal capacity you are saying
that you want the Town to the fullest extent possible to step forward and provide a defense for
you? Vice Mayor Remark replied that if the courts find out that it was not in their official
capacity, the Town would have the option of requesting reasonable court fees.
Commissioner Stark asked that if a policy were adopted, is it from the date it was adopted or
would it cover previous actions? Town Attorney Gougelman stated that this would need to be
defined. Town Attorney Gougelman asked are you also asking for Town Officers, does that mean
the Commissioners and other officers of the Town such as the Police Chief, Town Manager,
Town Attorney and Town Clerk? Town Attorney Gougelman suggested that all employees be
included. Mayor Wille suggested that the policy should include some previous time frame.
Attorney Hament stated that the Town Commission could adopt the policy to include, as to
claims from this day forward, regardless of when the claims arose. Town Attorney Gougelman
stated that it be related to service to the Town regardless of whether the complaint alleges that the
actions consummated were consummated in your personal or official capacity.
Mayor Wille asked for any comments from the audience regarding this policy.
Chuck Baird, 1111 River Road asked if "Agent" means volunteer firefighters and Town Board
members? Attorney Gougelman asked if this was the intent of the motion? The Town
Commission stated it is.
VICE MAYOR REMARK MOVED, SECOND COMMISSIONER STACEY THAT THE TOWN
COMMISSIONERS, OFFICERS, EMPLOYEES, ATTORNEYS AND AGENTS SUCH AS THE
OFFICIALLY RECOGNIZED TOWN BOARD MEMBERS OF THE TOWN AND VOLUNTEER
FIRE FIGHTERS BE INDEMNIFIED TO THE FULL EXTENT AUTHORIZED BY SECTION
111.07 FLORIDA STATUTES AND OTHER APPLICABLE FLORIDA STATUTES FOR ANY
CLAIMS FROM THIS DAY FORWARD, REGARDLESS OF WHEN THEY AROSE AND
REGARDLESS IF THE COMPLAINT IS AGAINST THE INDIVIDUAL IN THEIR OFFICIAL
OR PERSONAL CAPACITY.
VOTE: ALL AYES. MOTION CARRIED.
Commissioner Stark stated that she agrees in principal to the policy but, is uncomfortable that it
is coming up prior to the next agenda item. Mayor Wille explained that the Town makes laws
because of the random situation that comes forward and aggravates a neighbor or a group of
people that we have to respond to with these types of policies. Commissioner Stark clarified that
this will strengthen the Florida Statute, but does not replace Attorney Hament's advice regarding
the signing of a mutual release.
II. DISCUSSION AND POSSIBLE ACTION REGARDING ACCEPTANCE OF A
CONDITIONAL OFFER OF RESIGNATION SUBMITTED BY POLICE CHIEF
WALTERS (MOTION TABLED MAY 16, 2001)
COMMISSIONER STACEY MOVED, SECOND VICE MAYOR REMARK TO REMOVE
FROM THE TABLE DISCUSSION AND POSSIBLE ACTION REGARDING ACCEPTANCE
OF A CONDITIONAL OFFER OF RESIGNATION SUBMITTED BY POLICE CHIEF WALTERS.
VOTE: ALL AYES. MOTION CARRIED
Mayor Wille stated that the Commission had requested the Police Chief to work with Attorney
Hament regarding the specifics of a resignation and looking at the Town pursuing a mediator.
Attorney Hament stated that they were not able to agree on mediation, but, he had requested the
Chief to put into writing exactly what it is he is expecting.
Commissioner Stark stated that Attorney Hament advised that mediation was not agreed to and
stated that in reviewing the tape from the last meeting, there was a motion that the mediation be
done within that week's time frame asked Attorney Hament if that was conveyed to Chief
Walters and did he refuse mediation? Attorney Hament stated that prior to him being appointed
as labor law attorney, there was some discussion about mediation as to the relationship between
the Chief and the Town, which was superseded when the Chief offered the conditional
resignation. Attorney Hament stated that the mediation you're referring to was to try to come to
terms on the resignation and he discussed this with the Police Chief and he advised me that he
was not willing to mediate.
Attorney Hament stated that a "release of all claims" has become a standard operating procedure
if you pay someone over and above what you are required to pay an individual, especially if there
have been, at least, implied threats that the individual may bring legal claims against the Town or
certain officials.
The Town Commission and Town Manager reviewed a memo the Town Manager submitted regarding
Police Chief Walters' pay out figures.
VICE MAYOR REMARK MOVED, SECOND COMMISSIONER STACEY TO VOTE ON
THE TABLED MOTION: THAT POLICE CHIEF WALTERS BE PAID ALL SALARY
COMPENSATION TO INCLUDE MONETARY COMPENSATION FOR ALL BENEFITS, TO
INCLUDE ACCUMULATED SICK TIME AND VACATION TIME, WITH THE EXCEPTION
OF THE USE OF A TOWN VEHICLE, AS THOUGH HE DID NOT RESIGN, FROM JUNE 1,
2001 THROUGH DECEMBER 31, 2001. THE TOWN WILL CONTINUE TO PROVIDE
HEALTH INSURANCE THROUGH DECEMBER 31, 2001. THE CHIEF'S FINAL CHECK
IS TO BE ISSUED WITHIN SEVEN CALENDAR DAYS. ALL STANDARD DEDUCTIONS
WILL BE MADE TO INCLUDE 5% OR THE TOTAL AMOUNT DUE AS HIS PERSONAL
CONTRIBUTION TO THE POLICE RETIREMENT PLAN. $15.000.00 WILL BE
DEDUCTED AND FORWARDED FROM HIS FINAL CHECK AS HIS 2001 ICMA
CONTRIBUTION. THE CHIEF WILL KEEP ONE COMPLETE UNIFORM TO INCLUDE
HIS DUTY WEAPON. THE TOWN MANAGER IS DIRECTED TO COOPERATE FULLY
WITH THE POLICE CHIEF DURING HIS FINAL TWO WEEKS OF EMPLOYMENT.
VOTE: MAYOR WILLE ASKED FOR THOSE IN FAVOR OF THE TABLE MOTION,
SIGNIFY BY SAYING AYE AND THOSE OPPOSED SIGNIFY BY SAYING NAY.
VOTE: COMMISSIONER STACEY, NAY; COMMISSIONER STARK, NAY; VICE
MAYOR REMARK, NAY; MAYOR WILLE, NAY. MOTION DEFEATED.
Commissioner Stark stated that Police Chief Walters submitted a conditional offer to resign,
which did not include a release and has stated that he is not willing to sign a release.
Commissioner Stark asked Police Chief Walters if his conditional offer to resign stands?
Police Chief Walters stated that his offer stands.
Mayor Wille stated that there are hours, not figures listed in Chief Walters' conditional
resignation and advised that if the Commission is going to make a motion to accept the
conditional resignation, we will need to list figures.
COMMISSIONER STARK MOVED, SECOND VICE MAYOR REMARK NOT TO ACCEPT
POLICE CHIEF'S CONDITIONAL OFFER TO RESIGN.
VOTE: ALL AYES. MOTION CARRIED.
Vice Mayor Remark stated that she promised the Chief that she would not stand in his way of
resigning and that she really thinks things can be worked out. Vice Mayor Remark stated that
she is very torn because she knows he is tired and feels he is not being productive and he wants
to resign. Vice Mayor Remark stated that she was elected to take care of the fiscal
responsibilities of the Town and that she talked to a lot of people in business and municipalities
regarding the release and stated that if nobody did anything wrong, what is the simple signing of
a hold harmless release?
Mayor Wille stated that he has made inquiries retarding a release from attorneys and senior
managers in the county and has found no one recommends this type of package without releases.
Commissioner Stark stated that based on the recommendations of the attorney, she feels the same
way the Commission feels regarding the release and that she feels the Police Chief is at his
frustration threshold with his situation with his employment and he could quit tomorrow with no
release and the Town is still in the same position.
Commissioner Stacey stated that he promised the Police Chief that he would help him retire
gracefully and that he would support him to retire, but, he does not feel he should vote against
the wishes of the Town Commission.
Steve Walters, Chief of Police came forward and stated that he never said he was going to sue the
Town of Melbourne Beach and further stated, "Did I imply that certain members of this Town
government, that I would if I had to? Sure did. Do I still intend to" Maybe." Chief Walters stated
that if the Town is going back to indemnify everyone and nobody's done anything wrong, then
there should not be a concern. Chief Walters pointed out that the Town has not required a release
or any employee who has left the Town.
Chief Walters stated that he has made his proposal because he can no longer tolerate working
under the Town Manager's direction and control and because it is affecting the entire Police
Department and how we render services to the community. Chief Walters stated that he does not
want this money so that he can come back and sue the Town, that is not his intent, it is him intent
for the Police Department to go on without the Town Manager's harassment day after day. Chief
Walters stated that there are a lot of other employees who feel as he does and stated that he
wanted to make it clear that the money is not so that he can come back and sue the Town and that
no one has ever been able to give him one single incident of where he has violated any rule,
regulation, policy or standard of this Town.
Vice Mayor Remark asked Police Chief Walters if he feels the release is tying his hands? Chief
Walters stated that he feels that is people intentionally violate someone's rights, they should be
held responsible, that's why I won't sign the release. Attorney Hament clarified that is Chief
Walters signs the release, he is giving up his right to sue.
After a discussion of existing departmental procedures between the Town Commission and
Police Chief, Mayor Wille asked Police Chief Walters if he is willing to go through the
mediation process? Chief Walters stated that he has no choice if he is going to stay, yes. Mayor
Wille stated that if the parties are willing to go through mediation they can find areas they can
agree on and build on that, but they have to be willing, otherwise, it will be a waste of time and
resources.
Commissioner Stark reminded the Commission that they had agreed to perform an evaluation for
the Town Manager within 30 days at the February 9 special meeting and stated that she also
has an obligation to do an evaluation, based on the current circumstances. Commissioner Stark
read from a memorandum regarding the Town Manager's evaluation process and the Town
Commission members discussed completing their evaluations as soon as possible.
III. DISCUSSION AND POSSIBLE ACTION REGARDING TOWN MANAGER'S CONTRACT
(REQUESTED BY COMMISSIONER SMITH)
No action was taken on this item as Commissioner smith was not in attendance.
Commissioner Stark asked if the "goals" workshop has been scheduled and Town Manager
Ciummo stated that it has been tentatively scheduled for June 11th.
Vice Mayor Remark stated that the Williams Building Committee held a meeting with County
Commissioner Higgs and she would like to request a special meeting for next week. It was
discussed to hold a special meeting to discuss the Williams Building, tennis court resurfacing,
relocation of Old Post Office structure and Town Engineer work orders.
Commissioner Stacey stated that he serves on the International Round Table Committee for the
Town and requested permission to look into the idea of the Town having a "Sister City" in
Germany. Town Manager Ciummo stated that she will work with Commissioner Stacey on this.
Mayor Wille stated that he has asked the Police Chief is he is willing to work toward mediation
and he has agreed and asked the Town Manager if she is willing to work with the Police Chief in
a mediation format? Town Manager Ciummo stated that she certainly would and advised that
she talked with the mediator to explain the situation. Mayor Wille stated that he had also
contacted the mediator. Mayor Wille requested that a proposal for the mediation be on the next
agenda for action by the Town Commission and that he would like it in writing from the Town
Manager and Police Chief that they are willing to enter into the mediation with an open mind.
IV. ADJOURNMENT
COMMISSIONER STACEY MOVED, SECOND VICE MAYOR REMARK TO ADJOURN.
VOTE: ALL AYES. MOTION CARRIED
The special meeting of the Town Commission of the Town of Melbourne Beach, Florida
adjourned at 6:20 p.m.
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ROBERT D. WILLE, MAYOR
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CYNTHIA E. MASNY, CMC
TOWN CLERK
NOTE: A mechanical recording has been made of the foregoing procedures of which these minutes are a part and
is on file in the office of the Town Clerk.
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